People v. Harris CA1/1

Filed 1/7/16 P. v. Harris CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A144857 v. IRA BERNARD HARRIS, (Contra Costa County Super. Ct. No. 5-150039-6) Defendant and Appellant.

A jury convicted Ira Bernard Harris of felony first- and second-degree residential burglary and of misdemeanor receiving stolen property.1 The trial court imposed a low- term sentence of two years in state prison for first-degree residential burglary, a 16-month sentence in state prison for second-degree residential burglary, which was stayed, and a concurrent sentence of six months in county jail for receiving stolen property. Harris’s appellate counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) We have reviewed the record and have found no errors. We therefore affirm. FACTS On the afternoon of June 16, 2014, Vince Ruso was in the garage of his home on Minert Road in Contra Costa County. The garage faces the street, and the garage door

1 The felony first- and second-degree residential burglary convictions were based on Penal Code sections 459 and 460, subdivision (a). The receiving stolen property charge was based on Penal Code section 496, subdivision (a). All further statutory references are to the Penal Code.

1

was open. Ruso heard someone honking a car horn at a slow-moving car ahead of it. The slow-moving car, a white, older model, four-door Mercedes sedan, then pulled over and parked across the street from Ruso’s house. Two young men got out of the Mercedes, one of whom Ruso identified at trial as Harris. Ruso saw the men cross the street and walk up to the front door of the home of his next-door neighbor, Mary Tuchscherer. Ruso lost sight of the men when they entered the porch area. A short time later, Ruso realized that the two men were in Tuchscherer’s back yard. He became suspicious, but he could not see clearly what they were doing because a fence blocked his view. He alerted his wife and asked her to call the police. Before the police arrived, Ruso and his wife saw Harris go back to the Mercedes, retrieve a small grey bag or pouch, and return to Tuchscherer’s yard. Two officers arrived on the scene while the men were still there. One of the officers, Daren Billington, reached over the tall gate at the side of Tuchscherer’s house to undo the latch. As he did so, he saw Harris’s accomplice, later identified as Tarell Smith, come around a corner at the rear of the house and walk toward the gate. Billington made eye contact with Smith, who abruptly stopped, turned around, and retreated. After Billington opened the gate, the officers entered the back yard, but no one was there. A shed in the garden contained two separate banks of file cabinets, which had been ransacked with drawers pulled open and papers strewn about. A black neoprene glove was found in the yard near the rear of the shed. A screen on a window at the back of the house had been cut in an L-shaped pattern along the frame. The cut had been made on the left side of the screen, running approximately 12 inches down the side of the screen and over six inches along the bottom of the screen. The smoothness of the cut on the screen showed the incision was made by a cutting tool. Police officers searched the property of the neighbor on the far side of Tuchscherer’s property and found Harris hiding behind a tree in the back yard. After Harris was apprehended, Billington located the white Mercedes with its engine still running. The vehicle appeared to be in working order, and Billington saw no smoke coming from under the hood. In a subsequent search of the Mercedes, police