People v. John CA2/2

Filed 12/22/14 P. v. John CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B250803

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA395535) v.

JAMES DAVID JOHN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Rand S. Rubin, Judge. Affirmed.

Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted James David John of first degree burglary. (Pen. Code, § 459.) He was sentenced to a term of 40 years to life. He contends that the trial court erred by authorizing the use of a rape conviction for impeachment, which dissuaded him from testifying at trial. John cannot raise the impeachment issue on appeal because he did not testify. In any event, the evidence of John’s guilt is overwhelming, and there is no reasonable probability his testimony would have secured a favorable outcome. FACTS Zal Batmanglij was using his home computer at 1:00 a.m. on March 23, 2012. He heard footsteps above him, on the second floor of the house where he lives alone. Batmanglij quietly left the house and ran to a neighbor, Ofer Moses, telling Moses that he thought there was an intruder. The two men walked to a point where they had a clear view of Batmanglij’s house. They saw a man’s face appear in the upstairs sliding glass door. Batmanglij described the face as “very pale” and “ominous” looking. Frightened, he called 911 to summon help. During the 911 call, Batmanglij watched his house and did not see anyone leave it. At trial, Moses identified the face he saw in the window as defendant John. Moses testified that defendant stood at the window for 20 to 30 seconds, and what he saw was “unmistakable.” Moses witnessed several LAPD officers approaching Batmanglij’s house on foot. Moses saw defendant leave the house as the police arrived. Police Officer Jonathan Pacheco and a partner shined their flashlights on a Caucasian male carrying two paper bags, just outside a door to the victim’s house. Pacheco identified the man as defendant. When ordered to stop, defendant looked in the direction of the police and immediately ran through a gate, toward the rear of the property, dropping the bags as the officers chased him. Pacheco lost sight of defendant but could hear him climbing over fences. More officers arrived. Pacheco found defendant hiding under a pile of leaves and bushes in a nearby yard. It was the same person that Pacheco had just seen at the victim’s house. The police showed defendant to the eyewitnesses. Moses confidently identified defendant as the person whose face he saw at the window. Batmanglij was unable to