People v. Martinez CA2/6

Filed 2/2/16 P. v. Martinez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B264187 (Super. Ct. No. 2013023768) Plaintiff and Appellant. (Ventura County)

v.

RAUL MARTINEZ,

Defendant and Respondent.

Raul Martinez appeals his conviction by jury of first degree residential burglary (Pen. Code, §§ 459, subd. (a); 460) and possession of a smoking device (Health & Saf. Code, § 11364.1, subd. (a).) He was sentenced to the middle term of four years in prison on the burglary conviction, plus a concurrent term of 90 days on the possession offense. He was awarded 761 days of custody credit, calculated as 381 days in actual custody plus 380 days of good conduct credit. Over appellant's objection, the trial court ruled that evidence of appellant's prior uncharged similar acts was admissible to show identity and common plan for the charged burglary. Appellant contends this was an abuse of discretion because the uncharged burglaries were not sufficiently similar to the charged offense. We disagree and affirm.

FACTS A. Charged Burglary Offense On June 29, 2013, Sergio Saldana left his house in Port Hueneme at approximately 8:10 p.m. He returned home 15 minutes later. As Saldana opened his garage door, he saw a man run out of the side door. He did not see the man's face. Saldana noticed two boxes of perfume were missing from the garage. When Saldana's son, who had been in the home, entered the garage, he heard a cellular phone ringing from a backpack he did not recognize as belonging to anyone in the house. Saldana took the backpack to the Port Hueneme Police Department. Officers searched the backpack and discovered a cellular phone, a wallet containing appellant's identification card, paperwork with appellant's name on it and a used methamphetamine pipe. During an interview with Officer Rocque Lopez, appellant was unable to explain why his backpack was found in Saldana's garage. He said he did not remember what had happened to the backpack and did not claim it was stolen. B. Appellant’s Prior Uncharged Acts Around 12:30 a.m. on December 29, 2012, a person entered Concepcion Fontillas' residence in Port Hueneme without her permission, took champagne and beer from the kitchen and left the storage area in disarray. Fontillas heard a noise which awakened her, but she ignored it and went back to sleep. Later that morning, Fontillas' son discovered that their home had been broken into during the night. The back door was unlocked and partially open. At 12:50 a.m. that same day, Officer Hamrick stopped appellant on the street approximately seven houses north of Fontillas' home. Appellant appeared intoxicated. Officer Hamrick saw a champagne bottle in appellant's pocket, as well as beer and other small items in shopping bags that appellant was carrying. When the officer learned of the burglary, he showed Fontillas the items found in appellant's possession. Fontillas identified the items as those missing from her home. At 2:00 a.m. on April 15, 2012, Norma Magallanes was sleeping on the sofa at her residence in Port Hueneme when appellant entered through the back door.