People v. Peotter CA6

Filed 2/28/14 P. v. Peotter CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038909 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1119227)

v.

CHARLES ROBERT PEOTTER,

Defendant and Appellant.

A jury found defendant Charles Robert Peotter guilty of first degree burglary and possession of burglary tools. (Pen. Code, §§ 459, 460, subd. (a), 466.)1 The trial court found true six prior prison term enhancements, but the court struck four of them. The court sentenced defendant to six years in prison and imposed a restitution fine of $1,440, among other fines. On appeal, defendant contends the trial court erroneously excluded exculpatory testimony in violation of his constitutional rights and the rules of evidence. Defendant also claims the court violated his ex post facto rights by imposing a restitution fine based on a statutory minimum that became effective after he committed the offense. We find no error in the court’s exclusion of the assertedly exculpatory testimony. However, we find the court erred in imposing a restitution fine in the amount of $1,440.

1 Subsequent undesignated statutory references are to the Penal Code.

We will reduce the restitution fine to $1,200, and we will affirm the judgment as modified. I. FACTUAL AND PROCEDURAL BACKGROUND A. Facts of the Offense Kevin Chong, the victim, lived and worked at his glass-blowing business in a warehouse space in downtown San José. On the afternoon of November 9, 2011, Chong came home to the warehouse and spotted someone’s legs inside his residence. Chong was concerned because nobody else was supposed to be in the building. He followed the intruder and spotted an open sliding door. At that point, Chong saw defendant just outside the door. Chong also noticed that his (Chong’s) bicycle—which he had stored inside—was outside the door. Chong asked defendant what he was doing inside the building. Defendant falsely claimed that he lived there, and walked back into the building. Chong followed defendant into the building. Defendant then yelled at Chong. Chong was afraid defendant was attempting to start a fight. Defendant walked towards Chong, and Chong retreated. Chong started to call 911 from his cell phone; defendant told him not to. Chong then moved to another room to dial 911 from a land line. At that point, defendant left the building. While Chong was on the phone with the 911 dispatcher, he went outside to look for defendant. Chong saw his bicycle hanging on a fence, and defendant was in the yard. Defendant picked up a tree branch and raised it over his head while walking towards Chong. Chong attempted to avoid defendant while remaining on the phone with the 911 dispatcher, who told Chong a police officer was arriving. Defendant then jumped the fence. San José Police Officer John Doktor, who was on patrol in the area, responded to a radio call regarding the burglary. While on route to the scene, Officer Doktor saw defendant run down a highway embankment and hide behind a light pole. Defendant fit the description of the suspect Officer Doktor heard on the radio call, so he decided to stop 2