People v. Perez CA2/8

Filed 8/26/21 P. v. Perez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B304078

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA120638) v.

ROBERT ALFONSO PEREZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Judge. Reversed in part and remanded. Nicholas Seymour and Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent. ____________________

Robert Alfonso Perez went to Aileen Navalta’s house twice in one morning. There was the 4:45 a.m. visit and then the 8:00 a.m. visit, both the same day. Each time, a witness saw Perez try to open Navalta’s gate. A jury convicted Perez of several crimes. Perez attacks just one conviction, arguing we must reverse his attempted burglary conviction because the trial court failed to give a unanimity instruction. The prosecution concedes the error but argues it was harmless. Perez’s contrary view is correct, so we reverse this one conviction. Statutory citations are to the Penal Code. I An amended information charged Perez with prowling (§ 647, subd. (h)), attempted first degree burglary (§§ 664 & 459), stalking (§ 646.9, subd. (a)), and two counts of carrying a dirk or dagger (§ 21310). The first four counts concerned events from March 29, 2019. The fifth count related to a separate incident on March 5, 2019. The amended information alleged Perez had one prior strike conviction that was a serious and/or violent felony conviction (§§ 667, subds. (a)(1) & (d), 1170.12, subd. (b).) The trial testimony told this story. Around 4:45 in the morning of March 29, 2019, Robert Lomeli, Navalta’s next-door neighbor, saw Perez at Navalta’s side yard fence. Perez was trying to open the gate. Lomeli yelled. Perez froze. Perez remained frozen while Lomeli called police. Lomeli had seen Perez walking around over the past week. The day before the incident, he saw Perez standing across the street with suitcases, as if he were waiting for a ride. Lomeli had been a neighborhood resident for more than 30 years, basically knew everyone in the neighborhood, and knew Perez did not live there.