People v. Powell CA1/2

Filed 9/3/15 P. v. Powell CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A144536 v. WILLIAM JAMES POWELL, (San Francisco County Super. Ct. No. 14002924) Defendant and Appellant.

Defendant William James Powell was convicted after a jury trial of first degree burglary of an inhabited residence (Pen. Code, § 459),1 and two counts of receiving stolen property (§ 496, subd. (a)). The jury also found true that the burglary was committed when another person, other than an accomplice, was present in the residence at the time of the burglary (§ 667.5, subd. (c)(21)). The trial court found true the additional allegation that defendant committed the burglary while on felony probation (§ 1203, subd. (k)). Defendant’s court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436, to determine whether there are any arguable issues for review. Defendant has also been informed of his right to file supplemental briefing, and he has not done so. After our independent review of the record, we find no errors or other issues requiring further briefing, and we affirm.

1 All statutory references are to the Penal Code except as otherwise stated.

1

FACTUAL AND PROCEDURAL BACKGROUND An information was filed charging defendant with first degree burglary with the allegation that a person was present in the residence at the time of the burglary,2 and two counts of receiving stolen property, all in connection with an incident that occurred on January 28, 2014, in San Francisco. It was also alleged that defendant had a prior conviction for second degree burglary for which he had served a state prison term (§ 667.5, subd. (b)), and that he had committed a crime while on felony probation (§ 1203, subd. (k)). The court ruled on the motions in limine filed by each side. Among the motions in limine, the prosecution sought to introduce a prior conviction from 2011 for section 459, commercial burglary in the second degree at Safeway, pursuant to Evidence Code section 1101, subdivision (b). This motion was denied. The court granted the prosecution’s motion, pursuant to Evidence Code section 1101, subdivision (b), to admit evidence concerning defendant’s prior conviction from 2013 for receiving stolen property (§ 496). At an Evidence Code section 402 hearing, the court determined, after listening to a taped statement of an interview with defendant and hearing testimony from Sergeant Young from the San Francisco Police Department, that there had not been a “knowing, intelligent and voluntary waiver of Miranda rights,” and thus did not allow defendant’s recorded statements to police to be used in the prosecution’s case in chief.3 A jury was impaneled and sworn. Terence Meurk, the victim, testified that he was alone in his home at about 8:00 a.m. on January 28, 2014, his wife and children having already left the house, when he heard a big bang and loud crash. He ran downstairs and found a rock near the front door and pieces of glass all the way to the front of the house. He “turned to look down the length of the house” and saw a person, who he identified in court as defendant, inside the house. Meurk and defendant made eye contact briefly. Defendant was wearing black pants and a black coat “that was like a cloth coat with a 2 This allegation is commonly referred to as a “hot prowl” allegation. 3 Defendant did not testify, and his prior statements were not introduced in evidence.