P. v. White CA5

Filed 6/4/13 P. v. White CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F064350 Plaintiff and Respondent, (Super. Ct. No. MCR041800) v.

JOSHUA RAY WHITE, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Wiseman, Acting P.J., Franson, J. and Peña, J.

Defendant and appellant Joshua Ray White contends there was insufficient evidence to support his conviction for residential burglary and vandalism. He also contends imposition of concurrent sentences on the two offenses violated Penal Code section 654. We conclude the evidence was ample and that his sentencing contention is moot. We affirm the judgment. FACTS AND PROCEDURAL HISTORY A jury found defendant guilty as charged, in a third amended information, of residential burglary (count 1, Pen. Code, § 459) and vandalism, a misdemeanor (count 2, Pen. Code, § 594, subd. (a)). In bifurcated proceedings, the court found true three enhancement allegations pursuant to Penal Code section 667.5, subdivision (b). At a subsequent hearing, the court sentenced defendant to an operative term of nine years in prison on count 1 and the enhancement allegations, together with a concurrent sentence of 264 days on the misdemeanor, with credit for 264 days of presentence custody. Viewed most favorably to the jury‟s verdict (People v. Avila (2009) 46 Cal.4th 680, 701), the evidence at trial showed the following: Gabriel Andrade parked in front of his friend‟s house on Colusa Avenue in Chowchilla at about 4:30 a.m. on August 24, 2011. His headlights illuminated a person dressed in black, wearing a black hat, emerge from beside the house next door, cross in front of the neighboring house, and disappear into the darkness “walking fast.” Andrade napped until he saw a light come on in his friend‟s house about 5:30 or 6:00 a.m. He told the friend what he had seen and they looked at the neighboring house. They saw the front window had been broken out; the friend called the police. Detective Charles Scott responded to the burglary call. He discovered the house at 212 Colusa Avenue had been broken into. An officer called the occupant of the house, Jerald Phelps, to inform him of the break-in. Phelps worked the night shift at Merced County Juvenile Hall. He returned home in response to the telephone call and, together with the investigating officers, determined that someone had cut the padlock off a double