People v. Tapia CA5

Filed 12/24/13 P. v. Tapia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F064847 Plaintiff and Respondent, (Super. Ct. No. CRL003914) v.

SALVADOR ANTHONY TAPIA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Brian L. McCabe, Judge.

Hassan Gorguinpour, 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, Carlos A. Martinez and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Levy, Acting P.J., Cornell, J. and Oakley, J.† †Judge ofthe Madera Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Defendant Salvador Anthony Tapia, was convicted by jury of first degree residential burglary (Pen. Code,1 §§ 459, 460, subd. (a)). Defendant admitted he suffered five prior prison terms within the meaning of section 667.5, subdivision (b), and the trial court ultimately sentenced him to an 11-year prison term. On appeal, defendant contends the evidence was insufficient to support a first degree burglary conviction, and the trial court impermissibly directed a verdict against him during its instructions to the jury. We agree the record does not support a finding of first degree burglary. FACTS On January 7, 2010, Monica Franco arrived with her children at her father’s home to do some laundry. She previously lived in the home, however, she had moved out a few months prior. After moving out, she still went to the home regularly to do laundry and clean the yard. On the day in question, she discovered the television missing from the home. When her father indicated he had not taken the television, Franco took her children outside and called the police. Franco noticed the bathroom window was open and the screen had been removed from the window. Upon further inspection of the home, Franco also noted a bottle of tequila was missing. The responding officer lifted fingerprints from the inside of the window. The fingerprints matched defendant’s. Jose Hugo testified he owned the home in question, and had previously allowed Franco to live there. However, she moved out prior to the burglary. There was no testimony regarding whether Hugo ever lived at the home. Neither Franco nor her father knew the defendant.