Opinion
E071989
03-27-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID SALVADORE HOLQUIN, Defendant and Appellant.
David Salvadore Holquin, in pro. per.; and Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1707487) OPINION APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge. Affirmed. David Salvadore Holquin, in pro. per.; and Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant David Salvador Holquin was caught burglarizing a residence and in possession of stolen goods. Following a jury trial on October 18, 2018, defendant was convicted of first degree residential burglary (Pen. Code, § 459; count 1) and receiving stolen property exceeding over $950 (§ 496, subd. (a); count 2). In a bifurcated proceeding, the trial court found true that defendant had sustained a prior prison term for a violent felony (§ 667.5, subd. (a)), to wit, attempted murder, a prior serious offense (§ 667, subd. (a)) for an attempted murder, and two prior serious and violent strike convictions (§§ 667, subds. (c) & (e)(2), 1170.12, subd. (c)(2)(a)) for two counts of attempted murder with the use of a firearm committed in October 2000. After the trial court denied defendant's request to strike his prior strike convictions, the court reduced count 2 to a misdemeanor under section 17, subdivision (b), and sentenced defendant to a total indeterminate term of 25 years to life in state prison with 1,100 days credit for time served as follows: an indeterminate term of 25 years to life on count 1 and a concurrent term of 180 days on count 2. The court struck the sentence on defendant's prior violent prison term and prior serious felony conviction. Defendant appeals from the judgment. We find no error and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Count 1—Residential Burglary
R.N. owns a house in Carson, California, and a second residence in Temecula, California. R.N. stays in the Carson house when she is working in the Los Angeles/Long Beach area and at the Temecula residence when she is not working.
On July 10, 2017, while in Carson, R.N. received an alert on her cell phone that something set off a motion detector inside her Temecula house. R.N. had an Internet-based program (Arlo), which sends the videos recorded inside her house once a motion detector is set off, as well as a live feed from the camera, directly to her cell phone. The live feed allowed R.N. to watch directly what was occurring inside her residence in real time. The system recorded four videos, but R.N. was able to only save one. R.N. immediately called 911 to report a break-in. As R.N. was calling the police, she narrated for the 911 dispatcher what she was watching on her cell phone. R.N. saw a man (whom she identified at trial as defendant) moving through the house in a deliberate manner and carrying items. Defendant rummaged through a closet and took an orange-and-grey backpack out of it. Defendant also looked out a window a few times and then started unloading stuff and putting items back, before opening a front door. R.N. had locked the house and gave no one permission to be inside.
The one video R.N. possessed was played for the jury at the time of trial. The failure to save three of the four videos was subject to a pretrial motion to dismiss under Trombetta v. California (1984) 467 U.S. 479. During the hearing, the parties agreed that R.N. sent the link to the videos from her cell phone to the police, an officer viewed the videos on his computer, but he only saved the link to them, not the videos themselves. When the officer later tried to view the videos using that saved link, he could no longer retrieve the videos from the Arlo server as the files were "not kept" or "removed" from the server by Arlo. After hearing testimony from officers involved in receiving the link to the videos and reviewing the videos, the trial court denied the motion, finding the police did not collect an actual video.
When officers arrived at the Temecula house about five minutes after the 911 call, the officers could not get inside the residence through the front door or a left side gate because both were locked and the gate was too high to scale. As the officers were walking across the front door of the house towards a right side fence, the officers observed the front door open. The officers instructed defendant to come outside. Defendant, who appeared baffled, eventually came outside, and the officers detained him.
The officers had also detained another man whom they had seen walking away from the house as they approached. Following an investigation, the officers released that man at the scene.
Riverside County Sheriff's Department Deputy Torning arrived at the scene after defendant was detained, and interviewed defendant while he was in the back of a patrol car. Defendant stated he did not know who lived in the house and that he was inside looking for food and money.
After testimony about the initial interview at the scene, the trial court ruled that the initial interview was not admissible because no constitutional warnings were given pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). The court directed counsel to present testimony about only the station house interview where Miranda warnings were given.
Deputy Torning and other officers thereafter walked through the residence. Inside the house, the officers found a broken necklace on the floor and an open master bedroom window with the window screen cut. The officers also located a black knife on the master bedroom bed, a power tool on an ottoman in the living room, and a black backpack with several sets of car keys inside.
When R.N. arrived at her house, Deputy Torning viewed video clips from the Arlo security camera on R.N.'s phone. On the video, defendant walked around the living room area, moved some things around, came up to the front window, and pulled the window blinds down to look outside. Defendant then circled around the living room, went by the closet and looked inside, and eventually left. Deputy Torning did not see defendant take any items, but saw defendant carrying a round black-and-white, dark-colored bag. The bag he saw on the video was the same size and shape as the one he saw later with car keys inside.
After defendant was read his Miranda rights, defendant was interviewed at the police station. Defendant again stated that he was homeless and that he went inside the house to get something to eat, and to get some money. He also asserted that he entered the house through a window and the screen was already damaged.
An audio recording of the interview was played for the jury at trial.
B. Count 2—Receiving Stolen Property
On July 10, 2017, the same day as the residential burglary offense, C.M., an office manager for Teracor, a company located in Temecula, California, discovered that the office was ransacked and that several items were missing, including a backpack and several sets of car keys. No one had permission to possess those items or take them from the Teracor office. One of the keys stolen from Teracor, a key for a Honda Fit, had a replacement price of $214, which included $140 for programming the key. Two Honda keys were taken. The cost to replace a key for a 2016 Chevy Silverado was $355, which included $140 in labor cost. The cost to replace a key for a 2015 Toyota Tundra was $306.59, which included $130 in labor cost.
C. Defendant's Testimony
Defendant was the only witness for the defense and testified on his own behalf. He claimed that at the time of the incident he was using a lot of methamphetamine every day for an entire week and that he had been awake for the entire week straight. He denied breaking into the Teracor office and claimed to have found the car keys in a place where homeless people congregate and placed them in his backpack. Defendant told Deputy Torning that he thought the keys may have been stolen.
Regarding the burglary offense, defendant claimed that he was at a park where an unknown angry person started chasing him. Defendant then ran up to R.N.'s house, jumped over a side gate, knocked on the door for help, and when no one answered, he used a knife to cut a screen on a back window to get inside the house. Defendant did not have a cell phone to call 911. He had a backpack with keys and food, which he planned to eat inside the house. Defendant denied taking a backpack out of the closet. He recalled being interviewed by the officers on the day of his arrest, but he was lethargic, slurring his words, and had trouble staying awake because he had been up six straight days without sleep. Defendant did not inform the officers about being chased because he was not asked about that. Defendant denied intending to steal anything in the house.
Defendant admitted, on cross-examination, that he been convicted of two prior felonies. The prosecutor thereafter asked defendant "This isn't the first time that you tried to break into a house is it?" Defendant responded "Um, no." "It's been like 18 years ago."
This questioning by the prosecutor was in line with the trial court's pretrial motion in limine ruling admitting the two prior attempted murder convictions to impeach (in a sanitized version as "two felonies"), but not under Evidence Code section 1101, subdivision (b).
Defendant's trial attorney objected and the trial court sustained the objection. Defense counsel also requested a sidebar and after the jury was excused, defense counsel moved for a mistrial based on what the defense argued was a deliberate violation of a motion in limine order and prosecutorial misconduct. Following a lengthy hearing, the trial court agreed that the prosecutor violated the in limine ruling and that it did not "look good" and gave the prosecutor a warning. However, the court could not say for certain the prosecutor's violation of the court order was willful or whether the court would have admitted evidence of the prior convictions under Evidence Code section 1101, subdivision (b). The court denied the motion for a mistrial, but granted the lesser sanction of precluding the prosecutor from going into the facts of the prior incident beyond those already before the jury.
In a pretrial motion in limine ruling, the trial court held that unless the prosecutor was asking to admit the two prior felony convictions for attempted murder under Evidence Code section 1101, subdivision (b), the court would exclude them. The prior convictions occurred 18 years before the current trial, in which defendant broke into a house, and then, when the police tried to detain him, fired shots at the officers. Defendant was not charged with burglary in that case but with two counts of attempted murder with a firearm. The prosecutor stated that he did not think this was Evidence Code section 1101, subdivision (b) evidence, but the trial court disagreed. The court ruled that if defendant took the stand and if the prosecutor considered asking defendant if he had done it before, he had to ask the court first and there would be a hearing on the issue. --------
Thereafter, the jury was brought in and the prosecutor and defense counsel continued questioning defendant. On rebuttal, R.N. stated that while she was watching the video footage of defendant inside her house, she saw defendant taking a backpack out of a closet.
D. Procedural Background
On October 18, 2018, defendant was convicted of first degree residential burglary (§ 459; count 1) and receiving stolen property exceeding $950 (§ 496, subd. (a); count 2).
On November 8, 2018, in a bifurcated proceeding, the trial court found true that defendant had sustained a prior prison term for a violent felony (§ 667.5, subd. (a)), a prior serious offense (§ 667, subd. (a)), and two prior serious and violent strike convictions (§§ 667, subds. (c) & (e)(2), 1170.12, subd. (c)(2)(a)).
On January 3, 2019, defendant filed a motion to strike his two prior strike convictions pursuant to section 1385. Defendant pointed out the nature and circumstances of his present and past offenses, his criminal history, the age of his priors, his personal background, and his criminality arising due to his drug dependency. He also argued that his two prior strike convictions for attempted murder dated to a single episode in 2000 when he was 21 years old, his criminal conduct was decreasing in seriousness, and the offenses did not lead to a significant loss to the victim. Defendant further noted that even if he was sentenced as a one strike offender, given his current age, he would not be released from prison until he is about 60 years old.
The sentencing hearing was held on January 10, 2019. The trial court declined to strike any of defendant's prior strike convictions. The court reasoned that while the prior convictions were remote in time, they involved violence and weapon use and defendant was in custody for the majority of that time. The court also explained that while the current offenses were nonviolent, the residential burglary offense was serious. The court also noted that while defendant had a drug problem, there was no evidence to suggest he addressed his drug problem but instead defendant absconded from parole. The court, however, on its own motion reduced count 2 for receiving stolen property to a misdemeanor under section 17, subdivision (b), and sentenced defendant to a total indeterminate term of 25 years to life in state prison. The court struck the sentence on defendant's prior violent prison term and prior serious felony conviction. Defendant was awarded 1,100 days credit for time served and ordered to pay a $300 restitution fine (§ 1202.4, subd. (b)), a $60 criminal conviction assessment fee (Gov. Code, § 70373), and an $80 court operations assessment fee (§ 1465.8, subd. (a)(1)).
On January 11, 2019, defendant filed a timely notice of appeal.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so. However, he filed a one-page motion to this court, requesting we substitute his appellate counsel. We denied defendant's motion for failing to show that appointed appellate counsel had failed to raise any reasonably arguable issues by filing an appellant's opening brief under People v. Wende, supra, 25 Cal.3d 436. (People v. Harris (1993) 19 Cal.App.4th 709, 714.) Nonetheless, we deemed defendant's motion for substitute appellate counsel to be defendant's personal supplemental brief. In his motion, defendant, without citation to authority or record cites, asserts: (1) "pregely," presumably R.N., was not credible on the witness stand and misled the court; (2) the prosecutor improperly brought up his prior convictions when he was not charged with a residential burglary but attempted murder; and (3) the prosecutor deliberately attempted to use his prior convictions on cross-examination when the trial court had told the prosecutor he could not bring up his prior convictions during trial. Having thoroughly reviewed the record, we find no merit to these contentions.
" ' "[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness . . . . We [do not] resolve . . . credibility issues. . . ." [Citation.]' " (People v. Harris (2013) 57 Cal.4th 804, 849.) Rather, on appeal, " ' " '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.]" [Citation.] In conducting such a review, we " 'presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" [Citations.] "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment . . . . [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence." [Citation.]' " (Ibid.) Here, overwhelming evidence supports the jury's verdict that defendant committed residential burglary and receiving stolen property.
We now turn to defendant's purported prosecutorial misconduct claims. A prosecutor's conduct violates federal law if it " ' " ' "so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process." ' " ' " (People v. Wallace (2008) 44 Cal.4th 1032, 1070 (Wallace), citing People v. Earp (1999) 20 Cal.4th 826, 858.) Under state law, prosecutorial misconduct occurs when the "prosecutor uses ' " ' "deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " ' " (Wallace, at p. 1070, citing People v. Earp, at p. 858.) However, to rise to the level of misconduct, the prosecutor's deceptive or reprehensible acts need not be intentional. (People v. Hill (1998) 17 Cal.4th 800, 822 (Hill).) Upon a finding of prosecutorial misconduct, the prosecutor's behavior serves as the basis for the reversal of a conviction only if it is "reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839 (Crew).)
The prosecutor commits misconduct when " 'eliciting or attempting to elicit inadmissible evidence' in defiance of a court order." (Wallace, supra, 44 Cal.4th at p. 1071, citing Crew, supra, 31 Cal.4th at p. 839.) Even after Hill, supra, 17 Cal.4th 800 removed any bad faith requirement to find prosecutorial misconduct, courts have used the absence of evidence "suggest[ing] the prosecutor intentionally elicited inadmissible evidence" as a basis for finding no prosecutorial misconduct. (People v. Carrillo (2004) 119 Cal.App.4th 94, 100, italics added.)
Assuming, without deciding, the prosecutor committed misconduct to elicit the prior attempted murder convictions under Evidence Code section 1101, subdivision (b), the record indicates the trial court admonished the prosecutor and precluded the prosecutor from going into the facts of the prior incident beyond those already before the jury. Moreover, there was overwhelming evidence of defendant's guilt. Therefore, defendant could not have expected a more favorable result had the prosecutor avoided asking the question concerning the prior residential burglary. Additionally, because the prosecutor's question did not prejudice defendant, the prosecutor's conduct did not infect the trial with unfairness such that defendant was denied due process under the Fourteenth Amendment.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.