Opinion
D072315
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO GIL et al., Defendants and Appellants.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant Fernando Gil. Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant Eduardo Gil. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS283834) APPEAL from judgments of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant Fernando Gil. Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant Eduardo Gil. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Eduardo Gil (Eduardo) of 11 counts of residential burglary. (Pen. Code, §§ 459, 460, subd. (a); counts 1-4 & 6-12). The same jury convicted defendant Fernando Gil (Fernando), Eduardo's brother (sometimes collectively, defendants), of 10 counts of residential burglary. (§§ 459, 460, subd. (a); counts 2-4, 6-12.) Eduardo admitted he was on felony probation when he committed the 11 offenses. (§ 1203, subd. (k).) The court sentenced Eduardo to 16, and Fernando to 12, years in prison.
All further statutory references are to the Penal Code.
The jury acquitted Fernando on count 1. Pursuant to section 1118.1, the court granted the motions of Eduardo and Fernando for a judgment of acquittal on count 5 only.
On appeal, Eduardo claims there is insufficient evidence to support his conviction on count 1. Eduardo alone also claims the prosecutor engaged in misconduct during closing by stressing the significance of his possession of recently stolen property in determining his guilt beyond a reasonable doubt.
Fernando claims there is insufficient evidence in the record to support his convictions on counts 6, 8, 9, 11, and 12.
As we explain, we reject defendants' separate claims of error and affirm their judgments of conviction.
BACKGROUND
We view the evidence in the light most favorable to the judgments. (See People v. Osband (1996) 13 Cal.4th 622, 690 (Osband).)
Between mid-September and mid-December 2015, there were multiple residential burglaries in south San Diego County. As discussed on a count-by-count basis post, defendants were linked to the crime spree through admissions of guilt; physical evidence; property recovered by police from a jewelry reseller and a pawnshop; and stolen property recovered in defendants' possession.
Unless noted otherwise, dates refer to calendar year 2015.
Defendants were jointly tried under three separate theories of liability: 1) direct perpetrators of the residential burglaries (§ 459); 2) coconspirators in an uncharged criminal conspiracy to commit the target offenses of residential burglary (§ 182); and (3) aiders and abettors of the residential burglaries (§ 31). The jury was instructed on all three theories of liability.
Christopher Altbaum, who worked at a family-owned jewelry reseller, testified police contacted him in the latter half of December asking whether his business had purchased items from defendants, such as jewelry, coins, watches, and precious gems. Altbaum produced records of property sold by Eduardo on November 28 for $1,950, and by Fernando on November 24 for $1,480, and on November 27 for $1,140. These records included copies of defendants' government-issued picture identification (i.e., a driver's license or passport); their address, telephone numbers, and dates of birth; and their right thumbprints.
Jose Leobardo Rayos testified he was the operations manager of a chain of pawnshops. At the request of law enforcement, Rayos provided surveillance video from a San Diego store from mid-October through mid-December that captured Eduardo and/or Fernando, or both, entering the pawnshop and pawning various items that were stolen during the three-month crime spree. The video was corroborated by "at least 22" pawn slips issued by the pawnshop for items sold by defendants. Specifically, the video — and still photographs taken from the video — showed Eduardo pawning stolen items on October 16, November 18, and December 3 and 14; and Fernando doing the same on November 19, and also on December 3 and 14.
During the period corresponding to and spanning the three-month crime spree, defendants shared a bedroom in a two-bedroom apartment located on Elder Avenue in Imperial Beach, where their sister and mother also lived. On December 16, law enforcement conducted a valid search of the apartment. At the time of the search, Fernando was found sleeping in the back bedroom. Eduardo was not then at the apartment. Inside the bedroom shared by Eduardo and Fernando, law enforcement found "numerous expensive-looking watches, pieces of jewelry, rings, trinkets" and "what appeared to be a large amount of cash" inside a "tan work boot near the closet" of the bedroom. Additional law enforcement, including from the San Diego and Chula Vista Police Departments, and the Sheriff's Department, arrived to continue the search.
Detective Mario Alvarez of the San Diego Police Department participated in the search. Detective Alvarez testified he personally counted the money in the boot, comprised mostly of 20's and 100's, and found it totaled $5,140. Along with other law enforcement, he found several pieces of jewelry in defendants' bedroom including "gold necklaces, rings, men's and women's jewelry"; watches, including a "black Kenneth Cole" and a silver Rolex; a crucifix; "three silver certificates, $1 bills"; computers; a camera bag and camera; and "vast amounts" of "tennis" and "athletic" shoes among other items. As noted, police also found pawn slips in the bedroom and information linking defendants to a Chevy Impala.
Shortly thereafter, Eduardo came to the apartment on foot. On questioning, Eduardo told law enforcement he did not own a car, claiming he recently had sold one and had another one impounded. Police, however, searched for, and located a few blocks away from the apartment, a 2006 silver Chevy Impala. On the seat of the Impala in plain view was insurance paperwork in Eduardo's name. A records check confirmed the Impala was registered to Eduardo.
Detective Alvarez conducted a lawful search of the Impala. In the trunk, he found multiple bags full of property. Inside the bags and the trunk space were three computer tablets, including one in a green case; laptop computers; a gym or sports bag, with multiple logos on it including one which read, "Triple Bonus, Six Bingo and Goal"; empty coin wrappers; a heart-shaped glass; a black and white men's jacket; a skateboard; a tool bag containing various tools; multiple pairs of bright, expensive-looking athletic shoes; expensive bottles of liquor; and boxes of cologne, among other items.
Inside the passenger compartment of the Impala, police found a pair of binoculars; a "dime collection" and other currency in the center console; several watches; jewelry, including rings and earrings; and an awards card from the pawnshop managed by Rayos, among other items. After searching the Impala, police resumed the search of the apartment. Detective Alvarez testified they found multiple gaming consoles in the living room.
Police subsequently conducted a computer records check to determine if the property they recovered in defendants' bedroom and Eduardo's car was in fact stolen and if so, who owned it. Detective Alvarez testified that it was relatively easy to identify the owner of certain items, such as computer tablets, computers, and high school rings, as those items contained personal identifying information. For other property, law enforcement conducted viewings with the various victims in an attempt to identify who owned what.
As part of its investigation into the string of residential burglaries, police obtained a search warrant and subpoenaed the phone records of cellular phones associated with defendants. A number ending in 9297, attributed to Eduardo, was activated under his name on September 22 — after the residential burglary was committed in count 1 — and terminated under the same name on October 5; it was then reactivated on that same day and terminated on November 20, under the same name. It again was reactivated that same date and terminated on December 27.
A number ending in 2592 was initially attributed to Fernando. The 2592 number was first activated under Fernando's name on September 21, again after the burglary in count 1. On November 20, the number ending in 2592 was terminated and then reactivated that same date under Eduardo's name. Ultimately, the 2592 number was also deactivated on December 27.
Although there was a change of subscriber of the phone number ending in 2592 from Fernando to Eduardo on November 20, using the content from that phone, including text messages, photographs, videos, e-mails and other personal identifying information, police determined Fernando continued to use the phone ending in 2592 even after the subscriber information was changed to Eduardo on November 20.
Police downloaded content from the cellphones of Eduardo and Fernando and found a third number ending in 9169, registered under the name Betancourt from Salinas, California. Through investigation, police determined this third phone number was tied to the "[s]ame physical phone" used by Eduardo during the three-month crime spree.
Using cellphone records, police mapped the various cell phone towers and antenna sectors, or azimuths, accessed by the phones attributed to Eduardo and Fernando on the dates of the myriad burglaries to determine whether either or both phones were in the vicinity of the burglarized residences. This information, which is discussed post on a count-by-count basis, was then displayed on a "pie graph" with the "radius of one mile from the tower," as cell phones typically, but not always, accessed the cell tower closest to the location of the caller.
In analyzing the content of the phones belonging to Eduardo and/or Fernando, police also discovered several text messages between defendants' phones regarding "hits," which Detective Alvarez opined was slang for committing burglaries. The reference to a "hit" between defendants' phones was found on November 7, and 15, and on December 12, when a message was sent from Fernando's phone to Eduardo's phone stating, "let's go hit."
Police also found defendants' phones used the word "hit" when communicating with various third parties. There was a text message from Eduardo's phone to a contact named Jswole on November 17 stating, "hit lics too." Jswole responded a few minutes later stating, "I already knew u hit when I saw that snap of those rings." On November 30, the following text message was sent from Eduardo's phone to Jswole regarding computer tablets: "I[']m actually gonna come when I get the iPads I got from sd." Within the same text-message conversation, Jswole wrote back, "Hit kick? Manny just hit got big ass rifle," followed by, "hella billets" and "It's in my whip tho no gold just one rifle," to which the phone from Eduardo replied, "if he can[']t get rid of it throw that bruh."
There was a text message on December 3 from a contact in Eduardo's phone named "Bahl" to Eduardo stating, "just wait till me hit tomorrow and I'll brim them." On that same day, the individual named Bahl sent another message to Eduardo's phone providing, "Aye, we going to hit tomorrow right?," and the response was, "we[']ll talk." A similar message was sent on December 8 from Bahl to Eduardo's phone that stated, "Cmon fool. 100$ and some gold then that's all profit." Shortly thereafter, Bahl wrote, "You gonna hit more and make money anyway."
With respect to Fernando's phone, a contact named "Gordito" sent Fernando a message on October 29 stating, "Lol iknow cx let's hit one," and another two days later providing, "Wyd let's go hit one." Gordito also messaged Fernando's phone on November 2, stating, "Lol idk let's hit a lick at night cx." On November 19, Fernando's phone sent a message to Gordito providing, "u tryna get picked up by me an gus to go hit one real quick." The following day, Gordito texted Fernando's phone as follows: "Right here by Castle where we came yesterday to pick up. There is hella houses here to hit, bruh."
Count 1— Kim/Tesisteco
Angel Kim testified that on September 19, he and his family were living in a single-family home on Vista San Rufo in south San Diego County. That day, Kim left home at about 4:30 p.m. and returned at around 10:30 p.m. Because it was hot, Kim recalled leaving open some windows in the home.
Once inside the home, Kim saw the kitchen cabinets open. However, it was not until he walked into his son's bedroom, found the dresser drawers open with their contents on the floor, that he realized their home had been burglarized. Entry was through a window located in the back of the home. Property stolen included jewelry; watches; purses; a piggy bank; gaming consoles, computer tablets; and a computer.
Kim's wife, Lourdes Tesisteco, testified their kitchen was "all messed up." In their bedroom, she found the dresser drawers "pulled out," the mattress "turned over," and the bathroom "emptied out," as was the closet. Along with all of her jewelry, Tesisteco reported stolen multiple computer tablets, watches, and suitcases.
During trial, Tesisteco clarified her name had been misspelled as Testiteco in the information.
During the December 16 search of the Impala, police found a computer tablet containing the personal identifying information of Tesisteco. In defendants' bedroom, police also found two watches that Tesisteco subsequently identified as belonging to her, which she corroborated with photographs of her wearing such items.
Counts 2 — Twilleager & Beltran
Matthew Twilleager testified he and various family members, including his sister Sarah Beltran and her family, on October 14 were living in a four-bedroom house on Elm Avenue in Imperial Beach. At about 4:00 p.m. that day, the family vacated the home because it was being tented for termites. Before leaving, Twilleager made sure the home was secure. Their families planned to return home two days later. At about 9:00 a.m. on the morning of October 16, Twilleager was informed the home had been broken into while tented.
On inspection, Twilleager saw clamps had been removed from a portion of the tent on the side of the house and a window AC unit in one of the children's bedrooms had been removed, allowing entry into the home. Once inside, Twilleager found their home completely ransacked. In their children's room, he found "everything that was on the walls, photo frames, were taken off and broken," glass was "everywhere," and all of the contents of the closet "pulled out," including shelving. In the kitchen, he found items had been taken from the cabinets and in some cases, left in other parts of the home.
Twilleager described the living room was "shockingly a mess." The master bedroom was in a similar condition. Twilleager found items that he stored in an outside shed on the bedroom floor, including shovels, tools, and drill bits. A 500-pound floor safe located in the master closet had been moved about 15 feet to another part of the room. The safe was damaged from being pried open, as was the closet from which it was removed. Property taken from the safe included jewelry; private documents; binoculars; a gun scope; and a .45 handgun, a clip with ammunition, and the grey case where these items were stored, which had been locked in a compartment inside the locked safe. Other items taken from the home included multiple gaming systems; cellular phones; and a GPS unit.
Beltran confirmed that their home had been "trashed," noting "[e]very pair of socks, underwear" were out of the drawers on the floor; pictures were off the walls, their frames broken, and some of them torn; the bedroom mattresses were moved; and their nightstand was flipped over. Property stolen from the Beltran family included two full boxes of jewelry, including Beltran's grandmothers' wedding rings; a camera with disks and videos of her children growing up and their births; and rosaries from her children's baptisms, among many other items.
In January 2016, a detective from the San Diego Sheriff's Department contacted Twilleager regarding a .45 handgun. Using photographs provided by detectives, Twilleager found the serial number of his gun matched the serial number on the gun photographed by detectives. Detectives also sent photographs of a rifle scope and binoculars that Twilleager confirmed belonged to him.
Detectives also contacted Beltran in January 2016 in connection with a camera they had recovered. Using photographs provided by detectives, Beltran identified a camera and camera box and certain pieces of jewelry as hers.
Cell phone records showed the number ending in 9169 attributed to Eduardo (but, as discussed ante, was registered under the name Betancourt from Salinas) accessed a cell tower in the vicinity of the victims' home on the date of the break-in at about 11:54 p.m., which call lasted about 30 seconds. The records further showed the phone ending in 9169 "was communicating with the other phone number" ending in 2592 attributed to Fernando. That call started at 3:23:41 a.m. and ended at 3:23:58 a.m., and also accessed a cell tower near the victims' home. The records showed two other calls were made between these two phones in the vicinity of the victims' home at or near the same time.
Photographs downloaded from Eduardo's phone showed him sitting in his mother's bedroom holding a pistol in each hand, with money in his lap. Using metadata, police determined the photograph was taken on October 19. Using this photograph and others taken from Eduardo's phone, police determined one of the guns belonged to Twilleager.
Police also discovered photographs from Fernando's phone taken on October 16 from inside their bathroom apartment showing close-ups of the gun stolen from the Twilleager residence, in its gray box with the serial number visible. Also visible in the photograph was a fully loaded magazine and the operating manual for the weapon. Also found on Fernando's phone was a video of a person, whose face was covered, holding the same gun and the scope stolen from the safe inside the Twilleagers' master bedroom.
Eduardo conceded guilt on count 2.
Count 3 — Barnes
Errick Barnes testified he worked for law enforcement on October 17, when his south San Diego County home was burglarized. While on duty, Barnes received a "frantic" call from his wife informing him of the break-in. On arrival, Barnes found their home "completely ransacked," as every bed in the home had been turned upside down and every drawer in each of the bedrooms had been opened and searched, with the contents dumped on the floor. In the master bedroom, he found the bed and furniture destroyed.
A fire safe they kept in the master bedroom was missing. Barnes testified the safe had contained important documents; a loaded police-issued Sis Sauer handgun; and three "fully loaded [magazines] with hollow point police-issued ammunition." Because of the size of his hands, Barnes testified the handgun's grip had been "molded" to fit his hand. Barnes and other law enforcement who responded to his home determined that entry into the home was through a window, which had been pried open. That window included a handprint, which was collected for evidence.
About two months after the break-in, Detective Alvarez sent Barnes a photograph of a handgun, which Barnes readily identified as his Sig Sauer based on the customized grip.
A swab taken from an exterior window matched the DNA of Fernando, with the probability of it not being his DNA of 136 septillion. Fernando wisely conceded guilt on count 3.
A septillion is a number equal to one followed by 24 zeros.
Cell phone records showed about 10 calls were made by one of the defendant's cell phones accessing a cell tower near the victim's home (whose address was not publicly disclosed), starting at about 7:08 p.m. and ending at about 7:45 p.m.
Photographs downloaded from the cell phone ending in number 9297 showed Eduardo holding a Sis Sauer gun. Additional photographs of the same gun included the wording "SIG-Sauer [sic]." An October 20 text message from Eduardo's phone sent to a third party stated, "Sig-Sauer [sic] just got sold for 590."
Police also discovered photographs on Fernando's phone taken on October 19 showing Fernando sitting in his mother's bedroom holding two weapons, including the modified, police-issued Sis Sauer stolen from Barnes's home.
Count 4 — Mookini
Dina Jane Mookini testified she and her family lived in a home on Vista San Isidro in south San Diego County on or about November 14. With her family gone for the day, Mookini left home at about 4:00 p.m. and returned the following morning at about 4:00 a.m. On entry, Mookini immediately called 911, as she realized her home had been burglarized.
Police determined that entry into the home had been through a back window, which had been destroyed along with its frame. In the kitchen, Mookini found all of the cabinets and cupboards open, "things" on the floor, and items missing from her refrigerator.
Upstairs, Mookini found her sons' bedrooms and the master bedroom ransacked. In each of the bedrooms, drawers were opened and their contents strewn "all over the place." Property stolen from the home included expensive shoes, hats, and handbags; a gaming console; jewelry, including family heirlooms, her original wedding ring; watches; and gold.
About a month after the break-in, Mookini and her sons went to a police station and identified property belonging to them, some of which had been recovered by police at the pawnshop managed by Rayos, including multiple pairs of shoes; a crucifix; and a gaming console (which included chew marks made by the family dog).
At trial, Mookini was shown photographs of multiple individuals wearing or holding various items that had been stolen during the residential burglary, including rings; a handbag; a medication bottle and medication; shoes; high-end liquor; and a hat, which belonged to one of her sons.
A swab of what appeared to be a handprint taken from the window used to gain entry into the home was submitted for DNA testing. The swab showed it was 2650 times more likely Eduardo was a contributor than not; the results were inclusive as to Fernando.
Cell phone records from November 14 showed there was a call at about 6:39 p.m. made from Fernando's phone that accessed a cell tower near the victims' home.
Photographs downloaded from Eduardo's phone showed him posing with property belonging to Mookini, including a "gold ring with a green stone." Metadata from Eduardo's phone showed the photograph was taken on the same date of the burglary. Other photographs recovered from Eduardo's phone showed a prescription bottle with Mookini's street address, and a gold necklace with a crucifix resting on the bottle.
A November 14 photograph of four individuals, including Eduardo and Fernando, was recovered from Fernando's home. One unknown individual in the photograph is holding an expensive handbag, while Fernando is holding two bottles of liquor. As noted, police later found two bottles of liquor in the trunk of the Impala consistent with the liquor seen in the photograph. Mookini identified these items as belonging to her.
Eduardo conceded guilt on count 4.
Count 6 — Garza
Anna Garza testified she lived in a single-family home on Madden Avenue in south San Diego County. On November 20, she left her home at about 6:30 a.m. and returned at about 10:00 p.m., after finishing work at her second job. As she went to retrieve the mail, she saw the front door's security gate open and lights on inside. She immediately called 911. Once secured, Garza walked around the home and saw window screens missing from the kitchen, family room, and bedroom.
Inside, the kitchen cupboards were open, as was the sliding glass door in the family room. Garza's bedroom had been ransacked, as the dresser drawers had been opened and their contents "thrown all about"; her jewelry box was open and her jewelry was missing; and items from her closet were on the bed or on the floor. Besides jewelry, a cellular phone, a computer tablet, and some medication were stolen.
Cell phone records from the date of the break-in showed the phone ending in 2592 accessed a cell tower near the victim's home at 7:00:34 p.m.
As noted ante, the subscriber information for the phone ending in number 2592 changed from Fernando to Eduardo on the same day the Garza residence was burglarized. However, as also noted ante, police determined Fernando continued to use that phone even after the change in subscribership.
During the search of the Impala, police found a computer tablet containing the personal identifying information of Garza. After downloading the contents of the phone ending in 9297, police found a December 4 text message from that phone to a third party regarding a computer tablet that included the serial number matching the tablet stolen from Garza.
Count 7 — Simpson
Robert Simpson (Robert) testified he and his wife Celia Simpson (Celia) lived for about 47 years in a single-family home on Aries Court in Chula Vista. On November 26 — Thanksgiving night — they visited their daughter, who lived nearby. On returning home at about 11:00 p.m., they found a screen had been removed from a kitchen window. Once inside, Robert found their master bedroom in disarray, as if "a bunch of chickens went through it." They called police.
Like many other homes burglarized during the crime spree, Robert testified all of their home's kitchen drawers and cabinets had been opened and searched. In the master bedroom, a piggy bank had been opened and its content — about $5,000 — was missing. Also missing were rings, including one that cost Robert about $7,000; some of his custom belt buckles; and a "[b]ig bag of jewelry" belonging to his wife.
Celia confirmed that their home was a "mess" when they returned on Thanksgiving night; that nearly all of her jewelry was stolen; and that because she had a great deal of jewelry, it was hard for her to remember piece by piece what was missing.
In January 2016, Robert and Celia met a detective at the jewelry reseller managed by Altbaum. Robert identified property belonging to him including a golden "bucket" that had been on a gold chain, which his daughter-in-law had given him. Celia identified bracelets that bore her name; earrings; and some chains.
An analysis of cell phone records showed two calls from the phone ending in 9297 accessed a cell tower near the victims' home on November 26, one at 4:18 p.m. and another at 4:30 p.m.
Count 8 — Ortega
Gabriela Ortega testified she lived in a single-family home on Lieder Drive in south San Diego County. On November 20, Ortega left her secured home at about 1:00 p.m. and returned the following morning at about 9:45 a.m. On entering her home, like so many other victims Ortega found her kitchen cabinets open, and all the bedrooms "messed up." In the master bedroom, Ortega noticed a computer tablet was missing. Other items taken during the break-in included jewelry; a gaming console and games; and a spare car key.
With the assistance of police, Ortega found the break-in had occurred through the master bedroom window. At some later point, Ortega went to the police station and recovered her computer tablet.
Cell phone records from November 21 showed a call from the phone ending in number 9297 accessed a cell tower near the victim's home at about 6:58 p.m. Records from the phone connected to the number ending in 2592 showed a call accessed a cell tower near the victim's home at about 12:46 a.m. on November 22.
During the search of the Impala, police found a computer tablet containing Ortega's personal identifying information. After downloading the contents of the phone ending in 9297, police found a December 4 text message to a third party regarding a computer tablet that included the serial number matching the tablet stolen from Ortega, as noted ante.
Count 9 — Estolano
Carlos Estolano testified his home located on Surfbreaker Point in south San Diego County was burglarized on December 11. Estolano left his secured home at about 9:00 a.m. and returned at about 7:00 p.m. On entry through the garage, Estolano saw doors leading outside were open and toward the back of the home, a window was open. Estolano immediately called 911.
After police secured the home, Estolano went back inside and found the home "in disarray," particularly the "main bedroom." In that room, items that were usually in drawers were on the bed and floor. Boxes kept in two walk-in closets had been opened, as had the drawers in the bathroom adjacent to the main bedroom. Items taken from the home included multiple rolled coins that Estolano kept in a casino bag; boxes of perfume; and a gym bag, among other items.
About a week or so after the break-in, Estolano went to the police department and identified his casino bag, a heart-shaped glass container, and a perfume box, which police had recovered from the Impala, as noted ante.
An analysis of cellphone records showed a phone ending in 9297 accessed a cell tower in the vicinity of the victim's home at about 7:28 p.m.
Count 10 — Brooks
Nathaniel Brooks testified his family's single-family home located on Sea Coral Drive in south San Diego County was burglarized on December 11. Brooks left his secured home at about 5:30 p.m. and worked until about 2:00 a.m. On returning home, he found the garage's refrigerator door open. Concerned, he opened the door leading into the home, peeked inside, and saw all of the kitchen cabinet doors open. Brooks immediately called police. Once secured, police found entry into the home had been through a living room window, on the side of the home adjacent to some thick shrubbery.
Brooks described the home as being "trashed." In the home office, he found paperwork, normally kept in file cabinets and a desk, scattered on the floor. Items missing from this room included checkbooks and a handbag. In the living room, the drawers where the silverware was kept were open, and cushions from the couch were on the floor. In the kitchen, he found items had been removed from the refrigerator, some of which had been placed on the counter, and paperwork from a desk in the kitchen/dining area on the floor. In the master bedroom, Brooks found their bedside table drawers had been removed and their contents "dumped" on the floor, as was also the case with their chests of drawers, where they kept their jewelry.
Items taken during the break-in included the high school graduation rings of Brooks and his wife; a laptop; a gold-nugget ring; a Rolex watch; and some expensive jewelry belonging to his wife.
During the December 16 search of defendants' bedroom, police recovered the Brooks's high school graduation rings. Brooks's wife also identified a diamond necklace and earrings recovered from defendants' bedroom. In the trunk of the Impala, police found a computer bag bearing Brooks's name, which contained a cellular phone and some coins.
Brooks estimated that he and his wife went to the police station at least four times in an attempt to recover property stolen during the burglary. They subsequently identified the gold nugget ring; the Rolex; a "whole array" of other jewelry; and binoculars.
Cell phone records showed a cellphone with the number ending in 9297 accessed a cell tower near the victim's home at about 7:28 p.m. on the date of the break-in.
Count 11 — Eskine
Joseph Eskine testified their single-family house located at the end of a cul-de-sac on Mission Court in Chula Vista was burglarized on December 11. At about 7:00 p.m., Eskine and his wife returned home, walked through the front door, and saw a faint light in the kitchen. As he approached, he saw the refrigerator door was open, as was a sliding glass door leading to the patio. Eskine yelled at his wife to stay outside and to call 911.
Inside the kitchen, Eskine saw a brownie, with a bite missing, resting on the cooktop. Eskine described the rooms in the home as "pretty well trashed." In the dining room, Christmas gifts had been unwrapped, with some gifts missing. In the home office, medication was scattered on the floor, and both computers were gone. Eskine's gun cabinet, which he also kept in the office, had been pried open. Missing was a Remington .30-06 rifle with a scope, and a Mossberg 500 shotgun.
In the master bedroom, jewelry boxes belonging to Eskine's wife were open and the jewelry stolen. On the floor, Eskine found a hammer. The closet and its contents also had been ransacked. Inside their daughter's bedroom, a jewelry box had been opened and its contents dumped on her bed.
Police identified two computers belonging to the Eskines they recovered during the search of the Impala. Eskine also was shown a photograph police recovered from the phone ending in 9297 showing Eduardo sitting in the front seat of the Impala holding what Eskine identified as his Mossberg 500 with a "deer slugger barrel."
Cell phone records showed calls placed by the phone ending in 9297 accessed a cell tower near the victims' home at about 6:23 p.m., and again at about 6:32 p.m.
Count 12 — Aguilar
Ivette Aguilar testified her single-family home located on Tobias Drive in Chula Vista was burglarized on December 11. Aguilar left her secured home at about 9:00 a.m. and returned that night at about 7:00 p.m. On entry, she found the drawers in the kitchen open and their contents on the floor. Aguilar saw the kitchen window was open. She called police.
Missing from the home was Aguilar's laptop computer. Police later found the charger to the laptop outside her home, near a fence. About six days later, Aguilar went to the police station and recovered her laptop, which police had found in the trunk of the Impala.
Using call data, police determined on the date of the break-in a phone ending in 9297 made three calls starting at about 5:46 p.m., all of which accessed a cell tower located "right across the street" from the victim's home.
DISCUSSION
I
Sufficiency of the Evidence
A. Guiding Principles
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' (People v. Lindberg (2008) 45 Cal.4th 1, 27.)" (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
As noted, the jury was instructed that Eduardo and Fernando could be found guilty of the residential burglaries, counts 1-4, and 6-12, on the theory they were direct perpetrators, coconspirators in an uncharged criminal conspiracy, or as aiders and abettors.
In light of our resolution of this case, we deem it unnecessary to decide whether Eduardo or Fernando was guilty under an aiding and abetting theory of liability. (See § 31 [providing "[a]ll persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, . . . are principals in any crime so committed"]; see also People v. Morante (1999) 20 Cal.4th 403, 433 (Morante) [noting the "doctrine . . . that one may be liable as an aider and abettor 'when he or she aids the perpetrator of an offense, knowing of the perpetrator's unlawful purpose and intending, by his or her act of aid, to commit, encourage, or facilitate commission of the offense, "snares all who intentionally contribute to the accomplishment of a crime in the net of criminal liability defined by the crime, even though the actor does not personally engage in all of the elements of the crime" ' "], citation omitted.)
Entering a "house" with the specific intent to "commit grand or petit larceny or any felony" is a burglary. (§ 459.) " ' "[I]ntent must usually be inferred from all of the facts and circumstances" ' " (People v. Cain (1995) 10 Cal.4th 1, 47), and "may be proved by circumstantial evidence." (People v. Moore (1965) 234 Cal.App.2d 29, 31.) "Entry of an inhabited dwelling house with the requisite intent is burglary of the first degree. (§ 460, subd. (a).)" (People v. Mejia (2012) 211 Cal.App.4th 586, 605.)
Section 182 prohibits a conspiracy by two or more people to "commit any crime." (Id., subd. (a)(1).) " 'A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act "by one or more of the parties to such agreement" in furtherance of the conspiracy.' [Citations.]" (People v. Johnson (2013) 57 Cal.4th 250, 257 (Johnson).) "The prosecution need not prove that each conspirator knew the identity of all the other members of the conspiracy, or their exact functions. (Blumenthal v. United States (1947) 332 U.S. 539, 557; People v. Van Eyk (1961) 56 Cal.2d 471, 479.) If the defendant conspired with only one person instead of many, as charged, he [or she] is still guilty of conspiracy. (People v. Collins (1966) 242 Cal.App.2d 626, 633-634.)" (People v. Vega-Robles (2017) 9 Cal.App.5th 382, 420.)
"Evidence is sufficient to prove a conspiracy to commit a crime 'if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135 (Rodrigues).) "The overt acts charged as part of the conspiracy can be circumstantial evidence of its existence. ' "Such acts may establish the purpose and intent of the conspiracy and relate back to the agreement whose purpose may be otherwise enshrouded in the hush-hush admonitions of the conspirators." ' " (People v. Herrera (1999) 70 Cal.App.4th 1456, 1464, disapproved on another ground as stated in People v. Mesa (2012) 54 Cal.4th 191, 198-199.)
Conspirators are vicariously liable for the unintended acts of coconspirators if such acts are in furtherance of the conspiracy. Coconspirators are liable for any reasonably foreseeable offenses committed by the perpetrator. (People v. Hardy (1992) 2 Cal.4th 86, 188.) Proof of a conspiracy serves to impose criminal liability on all conspirators for the crimes committed in furtherance of the conspiracy. Where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his or her confederates committed in furtherance of the common design for which they combine. (People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 842-843.)
Because conspiracy criminalizes the agreement, express or tacit, to commit a crime, it " 'does not require the commission of the substantive offense that is the object of the conspiracy.' " (Morante, supra, 20 Cal.4th at pp. 416-417.) " 'It is not necessary that a party to a conspiracy shall be present and personally participate with his [or her] co-conspirators in all or any of the overt acts' " (id. at p. 417); instead, " ' " '[e]ach [conspirator] is responsible for everything done by his [or her] confederates, which follows incidentally in the execution of the common design . . . .' " ' [Citations.]" (See ibid.)
B. Analysis
1. Eduardo (Count 1)
During the December 16 search of the Impala, police found a computer tablet with the personal identifying information of Tesisteco and a gold watch she later identified as hers. In the defendants' shared bedroom, police found two additional watches Tesisteco identified as belonging to her.
Our high court has repeatedly recognized that possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his or her guilt. (See e.g., People v. Grimes (2016) 1 Cal.5th 698, 731 (Grimes).) Put another way, the "knowing possession by a defendant of recently stolen property raises a strong inference of the other element of the crime: the defendant's knowledge of the tainted nature of the property. This inference is so substantial that only 'slight' additional corroborating evidence need be adduced in order to permit a finding of guilty." (People v. Anderson (1989) 210 Cal.App.3d 414, 421; see also CALCRIM No. 376.)
The court in the instant case instructed the jury as follows with a modified version of CALCRIM No. 376: "If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you many not convict the defendant of Residential Burglary based on those facts alone. [¶] However, if you also find that supporting evidence tends to provide his guilt, then you may conclude that the evidence is sufficient to prove he committed Residential Burglary. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of Residential Burglary. [¶] Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt." --------
Eduardo contends this general principle of law does not apply to him because there allegedly was no other additional supporting evidence of his guilt in count 1 and because his possession of the stolen property was not recent. We disagree with both contentions.
Corroborating circumstances may include the attributes of possession, including time, place, or manner; the defendant's false explanations, flight, or evasive behavior; his or her sale of the stolen property at a discounted price, or shortly after the burglaries; or even the nature of the items stolen. (People v. Citrino (1956) 46 Cal.2d 284, 288-289 (Citrino) [finding the defendant's false statements regarding where he obtained the property, his selling of tools and equipment for below market value, and his using fake names in making such sales, was sufficient corroborating evidence to support his burglary conviction]; People v. McFarland (1962) 58 Cal.2d 748, 754 [stating that it "has frequently been held that possession of recently stolen property together with a false explanation will support a conviction," and recognizing this rule also applies when a defendant is "silen[t] upon arrest"]; People v. Lang (1904) 142 Cal. 482, 484 [finding corroboration after defendant pawned items the same day as the burglary]; People v. Russo (1959) 168 Cal.App.2d 747, 750 [noting the failure to show property was "honestly obtained" and the fact defendant sold property in the middle of the night for a price that itself suggested " 'hot' merchandise" was sufficient corroboration to support his burglary conviction]; People v. Robinson (1960) 184 Cal.App.2d 69, 77 (Robinson) [noting the similarity in modus operandi by which two stores were burglarized was among the evidence corroborating defendant's guilt].)
Here, although property stolen from the Kim/Tesisteco residence was found in his Impala and in the bedroom he jointly shared with his brother, Eduardo offered no explanation regarding how he came into possession of such items, including whether such items were lawfully obtained. (See Citrino, supra, 46 Cal.2d at pp. 288-289 [noting that when possession of stolen property is established, the failure to show such "possession was honestly obtained is itself a strong circumstance tending to show the possessor's guilt of the burglary"].)
Moreover, the record also shows Eduardo also engaged in evasive behavior (see Citrino, supra, 46 Cal.2d at pp. 288-289) with respect to the residential burglary in count 1 (and others he committed during the three-month crime spree). Eduardo on December 16 told police he did not own a car, after he approached his apartment on foot. Based on information they found inside the bedroom, police searched the area near the apartment and found the Impala parked nearby. The car not only was registered in Eduardo's name, but included personal identifying information in plain view.
Furthermore, the record contains substantial evidence to support the finding that the modus operandi of the burglaries in count 1, on the one hand, and counts 2 and 4 in which Eduardo admitted guilt, on the other hand, were similar, thus further corroborating his guilt on count 1. (See Robinson, supra, 184 Cal.App.2d at p. 77.)
Indeed, the burglaries in counts 1, 2, and 4 (and in many of the other counts on which Eduardo was convicted) shared many distinctive characteristics. In all three of these counts, entry was through a window, located at the back or side of the homes, out of view from the street; in all three counts, the homes had been ransacked, including the bedrooms, where beds were moved, drawers of any kind were opened and, along with the closets, their contents dumped on the floor; in all three counts, the kitchen cabinets in the homes had been opened and searched; and in all three counts, similar property was stolen, which were items that could be easily pawned or sold, which turned out to be the case in count 4.
We conclude Eduardo's lack of explanation regarding why he was in possession of property stolen from the Kim/Tesisteco residence, his "evasive behavior" on December 16 with respect to the Impala, where property stolen from this residence was discovered, and the modus operandi of the burglary in count 1, when compared to the other residential burglaries, is more than sufficient to satisfy the Grimes's "slight corroboration" requirement. (See Grimes, supra, 1 Cal.5th at p. 731; Robinson, supra, 184 Cal.App.2d at p. 77.)
Further, we reject Eduardo's contention that he did not "recently possess" property stolen from the Kim/Tesisteco residence because police found such property in mid-December, and the burglary of this residence took place in mid-September. The dictionary defines the word "recently" to mean "during a recent period of time" or "lately." (Merriam-Webster Unabridged Dict. Online (2018) https://www.merriam-webster.com/dictionary/recently as of Dec. 11, 2018, archived at https://perma.cc/T8F4-543Y.) The word "recently" therefore must be considered in context, as it is possible to have an event occur as "recently" as yesterday, just as it is possible to have an event take place as "recently" as a year ago.
In any event, the record shows count 1 was the first in a series of multiple burglaries that ended on December 11, about five days before police searched defendants' apartment bedroom and Eduardo's Impala, which led to the discovery of property stolen from the Kim/Tesisteco residence. We conclude a five-day gap between what turned out to be the end of the three-month crime spree and the discovery of the property stolen in count 1, satisfies the requirement under Grimes and its progeny that Eduardo was in possession of "recently" stolen property. (See e.g., People v. Midkiff (1968) 262 Cal.App.2d 734, 741 [concluding where items were recovered from defendant's possession "only ten days" after theft, only slight corroborating evidence was required]; People v. Williamson (1959) 168 Cal.App.2d 735, 742 [noting defendant had possession of stolen property "shortly after the burglary" when he was found with a stolen suit 20 days after the burglary in which it was taken].)
Finally, even if Eduardo did not "recently" possess stolen property as required by Grimes to show he was a direct participant in the burglary in count 1, we nonetheless conclude he was properly convicted on count 1 as a member of a criminal conspiracy. The record supports the finding that Eduardo, on the one hand, and various coconspirators, on the other hand, "positively or tacitly came to a mutual understanding to commit" the target offenses of burglary during the three-month crime spree, including in connection with count 1. (See Rodrigues, supra, 8 Cal.4th at p. 1135; see Johnson, supra, 57 Cal.4th at p. 257.)
The jury could reasonably find that Eduardo intended to agree with his coconspirators to commit residential burglaries and did in fact make such an agreement. The record shows that each of the residences "hit" within the conspiracy were single-family homes; that they were all located in the same general area, south San Diego County (where defendants also lived); that the means of entry into the homes was the same or nearly the same (i.e., through a window in the back or side of the homes); that the homes were ransacked in the same or similar manner; and that the type of property stolen from the homes, such as jewelry, computers and computer tablets, was similar.
Moreover, the record shows that Eduardo and Fernando on various occasions during the conspiracy went to the jewelry reseller and the pawnshop to sell property that had been stolen from homes targeted during the conspiracy; that vast amounts of stolen property and a large sum of cash were found in the bedroom they shared; and that the Impala registered to Eduardo also contained property that had been stolen during the conspiracy.
In addition, text messages, photographs, and other content downloaded from the phones ending in 9297 and 2592 further support the finding that Eduardo intended to agree with his coconspirators to commit burglaries and did in fact make such an agreement. Text messages downloaded from Eduardo's phone ending in 9297 showed there was communication between this phone, Fernando's phone, and others during the conspiracy about making "hits" and selling property that had been stolen from the south San Diego County residences.
Photographs found on the same two phones showed Eduardo and others holding property that had been stolen during the conspiracy, including expensive handbags; liquor; jewelry; medication (where the address of the victim was visible); and guns. In nearly all the burglaries, police found a phone attributed to Eduardo was in the vicinity (i.e., within a mile) of the burglarized homes on the appropriate date and during the time it was believed each of the offenses took place.
In addition, because Eduardo admitted guilt in counts 2 and 4 and Fernando admitted guilt in count 3, there is conclusive evidence that Eduardo and/or one of his coconspirators committed at least one of the approximately 37 overt acts identified by the court in its instructions to the jury on this theory of liability.
In sum, we reject Eduardo's contention there is insufficient evidence to support his conviction on count 1, either as a direct participant in the residential burglary or as a member of the criminal conspiracy that committed the string of burglaries during the three-month period.
2. Fernando (Counts 6, 8, 9, 11, & 12)
Fernando separately contends his convictions on counts 6, 8, 9, 11, and 12 must be reversed because there was no substantial evidence from which a jury could find he was involved in these residential burglaries, including because there was no evidence to show he was in possession of property stolen in any of these burglaries. Fernando's contentions show a fundamental misunderstanding of conspiracy law, and frankly, border on the frivolous in light of this record.
As noted, " '[c]onspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act.' [Citations.] Conspiracy separately punishes not the completed crime, or even its attempt. The crime of conspiracy punishes the agreement itself and 'does not require the commission of the substantive offense that is the object of the conspiracy.' " (Johnson, supra, 57 Cal.4th at p. 258; see Morante, supra, 20 Cal.4th at p. 416, fn. 5 [noting that "[c]ollaboration in a criminal enterprise significantly magnifies the risks to society by increasing the amount of injury that may be inflicted"].)
As noted ante in connection with Eduardo's appeal of his conviction on count 1, all of the burglaries — including counts 6, 8, 9, 11, and 12 — involved single-family homes in the same general area, south San Diego County, where defendants also lived. In most, if not all, of the burglaries, entry into the homes was through a window located in the back or side of the home, out of view from the street. All of the homes targeted during the conspiracy had been ransacked in the same or similar manner. And in each of the residential burglaries, the property that was stolen also was similar.
During the three-month conspiracy — including count 3, on which Fernando admitted guilt, and counts 4, 7, and 10, on which Fernando was convicted but has not challenged on appeal — the record shows that Fernando and/or Eduardo on various occasions went to the jewelry reseller and the pawnshop to sell property taken in the burglaries; that vast amount of property stolen in the burglaries and a large sum of cash were found in their bedroom; and that property stolen in the string of burglaries was also found in the Impala, which Fernando also drove, as evidenced by the video police found on the phone ending in 2592 showing him driving the Impala with his girlfriend riding in the passenger seat.
Text messages and photographs found on the phones ending in 9297 and 2592 further support the finding that Fernando intended to agree with Eduardo and others in the conspiracy to commit the target offenses of burglary. As noted ante, there were myriad text messages between Fernando and Eduardo, between Fernando and a third party, and between Eduardo and other third parties, in which they discussed making "hits"; selling stolen property; and referenced specific items that had been stolen. These two phones also included photographs taken during the conspiracy of Fernando, Eduardo, and others in the conspiracy holding stolen property, as summarized ante.
Cell phone records showed phones attributed to Fernando and/or Eduardo were, on the requisite date and time, in the vicinity (i.e., within a mile) of homes burglarized during the conspiracy.
Based on the foregoing, we conclude the jury could reasonably find that Fernando intended to agree with Eduardo and others to commit the target offenses of residential burglary and did in fact make such an agreement. (See Rodrigues, supra, 8 Cal.4th at p. 1135 [noting liability under a criminal conspiracy theory may be based on the " 'conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy' "].) From such evidence, we further conclude the jury could reasonably find that Fernando intended each element of the target offense be committed — entering a "house" with the specific intent to "commit grand or petit larceny or any felony." (See § 459.)
Finally, because Fernando admitted guilt on count 3, and Eduardo on counts 2 and 4, as before we also conclude there was conclusive proof that one or more of the parties to the conspiracy committed an "overt act" in furtherance of the conspiracy. (See Johnson, supra, 57 Cal.4th at p. 257.) As such, we conclude substantial evidence supports Fernando's convictions on counts 6, 8, 9, 11, and 12 under a criminal conspiracy theory of liability.
II
Prosecutor Error
Eduardo alone contends his convictions on counts 1, 3, and 6-12 must be reversed because the prosecutor during closing repeatedly argued over objection that "possession is nine tenths of the law" and thus, that "[p]ossession of recently stolen property goes a really, really long way" to establishing Eduardo's guilt. Eduardo contends these statements constituted an improper quantification of the beyond-a-reasonable-doubt standard. We disagree. In any event, even if error, we conclude it was harmless.
Under federal law, a "prosecutor commits reversible misconduct only if the conduct infects the trial with such ' "unfairness as to make the resulting conviction a denial of due process." ' [Citation.] By contrast, our state law requires reversal when a prosecutor uses 'deceptive or reprehensible methods to persuade either the court or the jury' [citation] and ' "it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct" ' [citation]." (People v. Davis (2009) 46 Cal.4th 539, 612.)
While prosecutors are given wide latitude during argument (People v. Wharton (1991) 53 Cal.3d 522, 567), "it is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements [citation]." (People v. Marshall (1996) 13 Cal.4th 799, 831.) However, where a prosecutor's comments are ambiguous, the question is "whether there is a reasonable likelihood that the jury misconstrued or misapplied" the comments. (People v. Clair (1992) 2 Cal.4th 629, 663.)
Here, we conclude the challenged statements made by the prosecutor, when viewed in context, were merely an attempt to explain the requirement in CALCRIM No. 376 that, for the jury to convict Eduardo of residential burglary as a result of his possession of recently stolen property, the jury needed to find beyond a reasonable doubt only "slight" additional supporting evidence. As such, we conclude the jury would have understood the challenged statements to pertain to this "slight" supporting-evidence requirement, and not, as Eduardo contends, to the speculative notion that it could convict him of residential burglary without making findings beyond a reasonable doubt. (See People v. Avila (2009) 46 Cal.4th 680, 714 [noting a court of review analyzes a claim of prosecutorial error during argument not in isolation, but instead based on the "argument as a whole"].)
Moreover, it is axiomatic that "[w]hen argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' [Citation.]" (Osband, supra, 13 Cal.4th at p. 717.)
Finally, as summarized ante, there is overwhelming evidence of Eduardo's guilt not only as a direct participant in the residential burglaries, including on counts 1, 3, and 6-12, but also as a member of a criminal conspiracy to commit the target offenses of residential burglary. (See People v. Booker (2011) 51 Cal.4th 141, 186 [noting even if a prosecutor committed misconduct, there was no prejudice "under either the state law (see People v. Watson (1956) 46 Cal.2d 818, 836) or the federal constitutional standard of review (see Chapman v. California [(1967)] 386 U.S. [18,] 24)" because "[v]iewing the prosecutor's statements in the context of his [or her] entire argument, the jury was properly informed about the prosecutor's burden, and the evidence of defendant's guilt . . . was overwhelming"].) We thus reject this claim of error by Eduardo.
DISPOSITION
The judgments of conviction of defendants Eduardo and Fernando are affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. AARON, J.