People v. Rubio CA3

Filed 10/24/14 P. v. Rubio CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Glenn) ----

THE PEOPLE, C074476

Plaintiff and Respondent, (Super. Ct. No. 13NCR09625)

v.

MARCELO RUBIO, JR.,

Defendant and Appellant.

A jury found defendant Marcelo Rubio, Jr., guilty of first degree burglary (Pen. Code, § 459)1 and misdemeanor possession of burglary tools (§ 466). Defendant admitted serving four prior terms in prison. The trial court subsequently sentenced him to an aggregate term of 10 years in state prison.

1 Further undesignated statutory references are to the Penal Code.

1

On appeal, defendant contends that there was insufficient evidence to sustain either of his convictions, adding that the trial court erred in denying his motion for a judgment of acquittal on the burglary charge. Defendant also asks for remand to clarify a fine. We will affirm and order correction of the abstract of judgment. I FACTUAL AND PROCEDURAL BACKGROUND In March 2013, Mindy Perrault was renting a home on property which included a main residence and a detached structure, described as a shed or a garage that had been converted into living quarters. On February 28, 2013, Perrault admitted herself to a mental health facility. On the morning of March 3, 2013, Perrault’s neighbor, Caryol Grundy, heard a noise; she looked out her window and saw defendant and Tanya LaBlue (both with bicycles) walking “around and around” Perrault’s home. As she watched, Grundy saw defendant take a chair over to the shed, access a window using the chair, and crawl into the shed. Grundy knew Perrault was not home; she called 911. Grundy then saw LaBlue walk to the street and back to the shed; defendant had opened the shed door and LaBlue walked into the shed. Although Grundy did not see either defendant or LaBlue leave the shed, there was a door into the main residence that was between the main residence and the shed, which Grundy could not see from her window. Officers Grant Carmon and Sevren Lemstrom responded “immediately” to Grundy’s 911 call. When they arrived at Perrault’s home, Carmon approached the main residence and heard a man say: “ ‘Get out of here. It’s the cops.’ ” Carmon then went into the main residence through a door that was already open. Inside, Carmon saw defendant standing in the kitchen area, in front of a fish tank, with a can of fish food in his hand. Defendant had the fish food tipped over the tank, as though he were feeding the fish, but the lid was still on the can. Moments later, LaBlue walked into the same room. Carmon detained them both and took them outside.