Opinion
No. A155105
09-04-2019
THE PEOPLE, Plaintiff and Respondent, v. GINO GIOVANNI LOMBARDO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 18NF000469)
Defendant Gino Giovanni Lombardo appeals from a judgment after a jury trial held in the San Mateo County Superior Court. His counsel requests that this court independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Lombardo was informed of his right to file a supplemental brief and has not done so. Upon our independent review of the record pursuant to Wende, we conclude there are no arguable appellate issues requiring further briefing and affirm the judgment.
BACKGROUND
In February 2018, the San Mateo County District Attorney filed an information alleging that on or about July 20, 2017, Lombardo and a co-defendant committed first-degree burglary in violation of Penal Code section 460, subdivision (a) by unlawfully entering an inhabited dwelling house with the intent to commit larceny or any felony. It was further alleged that this offense was a violent felony within the meaning of section 667.5, subdivision (c) and a serious offense within the meaning of section 1192.7, subdivision (c). Defendant pleaded not guilty to the charge.
All statutory references are to the Penal Code unless otherwise stated. --------
A preliminary hearing was held, at which the court found probable cause to believe Lombardo and the co-defendant had committed burglary as charged. Prior to trial, the defendants made a series of in limine motions, which the court granted. The court denied a defense motion to incorporate federal constitutional bases into all of the defendants' objections.
After jury selection, with the trial about to begin, Lombardo and the co-defendant moved to dismiss the allegation that the burglary was a violent felony within the meaning section 667.5, subdivision (c). Defendants argued no evidence was presented at the preliminary hearing that anyone other than themselves were present in the subject residence, a condominium building on Palm Avenue in Millbrae (Palm building), when the alleged burglary was committed in the building's garage. Therefore, the prosecution had failed to meet the requirement under section 667.5, subdivision (c)(21) that it be "charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." The prosecutor contended, among other things, that the motion was an untimely, de facto section 995 motion. The prosecutor also pointed to testimony that a building resident had reported that on the morning of July 20, he prepared for work, went down the elevator to the garage and found his bicycle was missing, suggesting it indicated the man was in the residence at the time of the alleged burglary. The court denied this motion.
The People presented evidence at trial that shortly before 3 a.m. on July 20, 2017, Lombardo and a co-defendant went through a series of doors and into a parking garage attached to, and used by the residents of, the Palm building. Within about ten minutes, the co-defendant left the garage carrying a bicycle and a few minutes later, Lombardo left carrying a young boy's scooter. These events were caught on surveillance video taken at the Palm building. Clips of surveillance video and still photographs taken from the video were shown at trial. Lombardo and his co-defendant stipulated that they were the persons seen in the surveillance video and still photographs. An investigating officer testified that there was no indication that Lombardo or the co-defendant attempted to take anything else or enter the main lobby of the building.
A resident of the Palm building at the time of the incident testified that the scooter taken by Lombardo belonged to her eight-year-old son. She did not know Lombardo or the co-defendant. Another resident of the Palm building at the time of the incident testified that he owned the bicycle taken by the co-defendant and was sleeping in his residence in the early morning of July 20. He did not know Lombardo or the co-defendant.
Lombardo testified that at the time of the incident he and his co-defendant were homeless and did drugs together. Lombardo had been homeless for six months after being forced to leave his mother's Section 8 residence because of his drug use, had been using drugs for six years and had never stolen anything to support his drug habit. That night, he and the co-defendant ingested the last of their drugs in a stairway of a 24 Hour Fitness facility to which the co-defendant belonged. Lombardo had been up for about 96 to 120 hours because of methamphetamine use and wanted to sleep. Although he and the co-defendant sometimes slept in the stairway, they left that night to avoid being kicked out of there by security, which sometimes occurred..
Lombardo said he and the co-defendant walked about five blocks to a park next to the Palm building and were there for about 10 minutes when it began to drizzle. They went to a nearby outdoor passageway that Lombardo knew of where people sometimes slept, which was covered from the rain. There was not enough cover there for them both. Lombardo opened a door of the Palm building that was cracked open and went inside to find shelter from the rain, and his co-defendant followed. The two walked through inside areas and some more doors and found themselves in a parking garage where Lombardo had been once, ten months before.
Lombardo testified that once in the garage, the two separated. He looked for a soft surface to lie on, such as a piece of cardboard or a tarp. He found a tarp and laid down, but he was uncomfortable. He heard a door close and thought the co-defendant had left. He decided not to sleep in the garage either. He also decided then to take a scooter he had seen because he thought it would help him get to a better sleeping place. It was a coincidence that the co-defendant also decided to take something once the two men were inside the garage. He returned to the 24 Hour Fitness facility's stairway, where he had several pieces of thick cardboard, and slept there. He thought he left the scooter in the stairwell, but it was gone the next day.
The People in rebuttal showed photographs taken in the area of the Palm building and nearby park, including of items in that area, on the morning of July 20. The photographs were taken several hours after the incident and showed dry conditions. The deputy who took the photographs testified that the weather conditions that morning were clear and sunny and the ground was dry, and he said that he did not see any sign of condensation or rain in any of the photographs.
In closing argument, the parties debated whether Lombardo had entered the Palm building with the intent to steal, a necessary element of the burglary charge against him. The prosecution contended that circumstantial evidence and common sense indicated Lombardo had entered the building with the intent to steal and was not a credible witness. The prosecutor asserted that the video evidence showed the co-defendant entered the garage holding some kind of tool and carefully closed a door behind him to avoid drawing attention to them, and that there was no indication of water or condensation in the video stills or the photographs taken later that morning. He pointed out that the two defendants split up upon entering the garage and that both took property and exited through the same door. He argued there was no reason the defendants could not have slept in the park or the 24 Hour Fitness facility. He contended that Lombardo "lied to you about it raining and lied about the reason he was over there [at the Palm building]. There's only one reason he did that, and that's so he could get away with going in and stealing that property that did not belong to him."
Lombardo's counsel argued that the evidence indicated Lombardo entered the building merely to find shelter and not to steal anything, and only decided to take the scooter after he had entered the garage. Counsel pointed to Lombardo's own testimony, which counsel asserted raised a reasonable doubt that Lombardo intended to take anything before he entered the Palm building's garage. Counsel argued the prosecution's evidence failed to establish that it did not lightly rain as Lombardo testified. He contended the video evidence indicated that defendants on their way into the garage looked right at a surveillance camera and did not cover their faces or hold any tools, indicating they did not have the intent to steal anything at that time, and, further, that there was no evidence that they attempted to steal from any of the 30 to 40 cars that were in the garage at the time.
The jury returned from deliberations with a verdict form indicating it had found defendants guilty of first degree burglary in violation of Penal Code section 460, subdivision (a). However, a juror verbally indicated to the court that the form did not reflect how that juror had voted individually. After questioning the foreperson and juror in chambers, the court concluded the juror had been confused about the question asked and reconvened proceedings. The jurors indicated individually that their verdicts were unanimous.
At sentencing, the court suspended imposition of sentence and placed Lombardo on supervised probation for three years subject to certain conditions. Lombardo filed a timely notice of appeal.
DISCUSSION
We have independently reviewed the record under Wende and have not found any arguable appellate issues.
Section 460, subdivision (a) states in relevant part that "[e]very burglary of an inhabited dwelling house . . . is burglary in the first degree." "As used in section 460, ' "inhabited' means currently being used for dwelling purposes, whether occupied or not.' " (People v. Tessman (2014) 223 Cal.App.4th 1293, 1297; § 459.) Every person who enters such a dwelling house "with intent to commit grand or petit larceny or any felony is guilty of burglary." (§ 459.)
Here, there is substantial evidence to support the jury's conclusion that Lombardo violated section 460, subdivision (a). In particular, the circumstantial evidence we have summarized is more than sufficient to establish that Lombardo entered the Palm building with the intent to steal. (See People v. Holt (1997) 15 Cal.4th 619, 669 ["Commonly," entering a premises with the intent to commit a felony "must be inferred from the circumstances"].)
Furthermore, Lombardo's defense was based largely on his own testimony. The jury was entitled to, and apparently did, conclude Lombardo's testimony was not credible. (See People v. Maciel (2013) 57 Cal.4th 482, 519 [" ' "it is the exclusive province of the . . . jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends" ' "].)
We have also examined the remainder of record, including the trial court's rulings before trial, its jury instructions and its sentencing decisions. We do not find any arguable appellate issues there either.
DISPOSITION
We have conducted an independent review of the record under Wende and conclude there are no arguable appellate issues requiring further briefing. The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.