The People v. Perez CA5

Filed 9/13/13 P. v. Perez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F065063 Plaintiff and Respondent, (Super. Ct. No. SF016440A) v.

MARTIN ARMANDO PEREZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Judith K. Dulcich, Judge. Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Detjen, J. and Franson, J.

INTRODUCTION Appellant Martin Armando Perez was convicted after jury trial of first degree burglary and sentenced to four years’ imprisonment. (Pen. Code, § 460, subd. (a).)1 Appellant challenges the sufficiency of the evidence supporting the guilty verdict and argues that he is entitled to additional custody credits. Neither contention is persuasive. The judgment will be affirmed. FACTS During the evening of January 16, 2010, Hilario Tellez, Sr. and his wife, Beatrice Chavez, ran some errands. While they were away, their house was burglarized and a flat screen television and a computer were stolen. The burglar or burglars entered the house by forcing open a bedroom window. Chavez and Tellez found two cigarette butts lying on the garage floor next to Tellez’s truck. In August 2011, police took a buccal swab from appellant. His DNA profile matched DNA that was found on one of the cigarette butts. 2 Chavez and Tellez do not know appellant and never invited him into their home. Appellant told a police officer that he smoked. He denied committing the burglary, saying “I’ll be honest. I steal cars. I didn’t do that, though.” Appellant’s younger brother, Juan Carlos Perez, testified that “at some point, approximately two years ago, thereabouts” appellant drove him to the house that was burglarized. Appellant stopped the car in front of the driveway. Juan knocked on the front door, which was opened by the residents’ son. Appellant did not pull his car into the driveway or get out of the car. Juan did not recall if the garage door was open or closed. Juan testified that appellant is a heavy smoker who typically flicks his cigarette