Opinion
H050851
04-26-2024
THE PEOPLE, Plaintiff and Respondent, v. HECTOR MANUEL GONZALEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. 22CR008887)
Wilson, J.
Defendant Hector Manuel Gonzalez appeals following his conviction for first degree burglary (Pen. Code, § 459) after which he was sentenced, pursuant to the Three Strikes Law, to an indeterminate term of 25 years to life. On appeal, Gonzalez argues that the trial court: (1) erred in instructing the jury with CALCRIM No. 362 on consciousness of guilt based on providing a false name and date of birth to police, (2) erred in responding during deliberations to the jury's question on the legal definition of the term "dwelling," and (3) abused its discretion in denying his Romero motion at sentencing.
Unspecified statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
As we explain below, we conclude that none of Gonzalez's arguments have merit. We will affirm the judgment.
I. Factual and Procedural Background
A. Charges, verdict, and sentencing
On October 21, 2022, the Monterey County District Attorney filed an information charging Gonzalez with one felony count of first degree residential burglary (§ 459). The information further alleged that Gonzalez had suffered three prior strike convictions (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)).
A jury convicted Gonzalez of first degree burglary and, in a bifurcated proceeding, found true the prior strike allegations. On March 1, 2023, after denying Gonzalez's Romero motion, the trial court sentenced Gonzalez to an indeterminate term of 25 years to life. The trial court also awarded Gonzalez custody credits and imposed various fines and fees, none of which are at issue in this appeal.
Gonzalez timely appealed.
B. Factual background
1. Prosecution case
On Sunday, October 2, 2022, around 9:00 p.m., Monterey County Sheriff's Deputy Aly Najem responded to the report of a residential burglary in progress. On arrival, Najem observed that the property was surrounded by a stone wall, with a chain link fence and gate. The padlock on the gate had been cut. A total of five or six deputies, including two K-9 units, took part in the ensuing search of the property, which Najem estimated was five acres in total. About one and a half to two hours into the search, Najem was informed that other officers had discovered two people hiding underneath some bushes on the property, along the perimeter wall. Najem testified that Gonzalez was one of the people hiding in the bushes that night, and that he was depicted in one of the photos of the intruders sent to police by the homeowner from his home surveillance system that night.
The home on the property was in the process of being remodeled.
According to Najem, Gonzalez gave the name "Julio Basulto" when asked to identify himself and gave a false date of birth as well. Gonzalez did not say anything about being one of the construction workers nor was he carrying any tools or wearing protective gear.
The homeowner, D.S., had been alerted by his home monitoring system that someone was inside his weekend home on Seventeen Mile Drive in Pebble Beach. D.S. had spent the previous night at the property and intended to stay the remainder of the weekend but returned to his primary residence due to work. Through the live video,D.S. could see three people in the residence, none of whom were construction workers or who might otherwise have permission to be inside his house at 9:00 p.m. on a Sunday night. Around 9:30 p.m., D.S. forwarded three photos captured by the surveillance cameras to the head of security at Pebble Beach who was coordinating with the police who had responded to the property. At trial, D.S. identified Gonzalez as one of the people he saw in the video that night and who was shown in one of the photos taken from that video.
We refer to the victims and witnesses by their initials to protect their privacy interests. (Cal. Rules of Court, rule 8.90(b)(4), (10).)
Three video clips from the surveillance system were played for the jury and entered into evidence.
The photos were entered into evidence.
D.S. walked through the property the next day to determine what items had been stolen or damaged in the burglary. It appeared that most of the rooms in the house had been entered, except for a bedroom with a separate lock, that D.S. and his wife occupied when they occasionally stayed at the property. D.S. testified that the intruders had taken a stereo worth $7,500, along with some cleaning supplies, a leaf blower, and other items which belonged to the construction company. The intruders also "badly damaged" a piece of furniture worth $5,000 and damaged at least two of the home surveillance cameras.
2. Defense case
Gonzalez testified on his own behalf. On the morning of October 2, 2022, Gonzalez was working in Carmel painting a room for someone named "Will," after which he attended his daughter's soccer match. When the match ended around 1:30 p.m., Gonzalez, his wife, and daughter went to eat lunch in Salinas. Around 2:00 p.m., Gonzalez went to another jobsite to pressure wash the exterior of a home in Carmel. Just before he finished working, sometime around 8:00 p.m., a friend called him and asked if Gonzalez could pick him up from a worksite in Pebble Beach. Gonzalez was familiar with the address, which is the site of the burglary, as he had dropped off his friend there a couple of days earlier to help with the remodeling work.
Gonzalez testified that, when he arrived in Pebble Beach, the security guard at the gate would not let him in, so he turned around and parked nearby. He then walked to the property, which took him approximately an hour. When Gonzalez got to the address around 9:00 p.m., the gate was closed and locked, so he crawled over a fence and started calling for his friend. Gonzalez saw several people on the property, which he thought was a construction site, "making a bunch of racket" and who appeared to be "vandalizing the place." A man wearing a construction helmet told Gonzalez that his friend was inside, so Gonzalez entered the home which was already open.
Once inside, Gonzalez was carrying a flashlight, but it "only shine[d] so far." He looked for the light switch but could not find it. He said that the surveillance video of him at the property showed him looking for a light switch not "rummaging" around. Gonzalez was irritated and walked outside, asking again where his friend was. Someone directed Gonzalez toward a bush. Gonzalez decided that he would just leave so he headed back toward where he climbed over the fence but, before he got there, he heard his friend. Gonzalez saw that his friend was in the bushes doing drugs, and because Gonzalez was an addict, he decided to join him. Gonzalez shot up and he and his friend passed out there in the bushes.
The next thing Gonzalez remembered was being rousted by police officers. Gonzalez denied taking anything from the property. Gonzalez admitted that he had been previously convicted of two first degree burglaries, in one of which the homeowners were present, as well as attempted robbery.
On cross-examination, Gonzalez said he did not recall giving police a false name and date of birth but said the name he "gave is [his] brother's name." When asked why the video shows him opening a refrigerator, Gonzalez said it did not look like a refrigerator and he thought it was an electrical panel, "where you can turn off and on the power of the house."
3. Rebuttal case
K.R. testified that he is a general contractor and had been hired by D.S. to renovate his house on Seventeen Mile Drive. K.R. was shown the photos taken from the surveillance video during the burglary but did not recognize any of the people shown. None of those people were employed by him, and no one would be working at the jobsite at 9:00 p.m. on a Sunday. K.R. did not recognize Gonzalez and Gonzalez was not one of his employees.
K.R. confirmed that two temporary power boxes and a compressor were stolen that night, and a surveillance camera that had been attached to the construction trailer was destroyed.
II. Discussion
A. Consciousness of guilt instruction (CALCRIM No. 362)
Gonzalez argues that the trial court erred in instructing the jury that it could consider his providing a fake name and date of birth to officers as consciousness of his guilt because those false statements did not involve the charged offenses. In the event that trial counsel's failure to object to the instruction forfeited this argument, Gonzalez argues that his counsel was constitutionally ineffective. The Attorney General does not argue forfeiture. Because we can resolve Gonzalez's claim on the merits, we will not address the issue of forfeiture and need not address the issue of ineffective assistance of counsel.
1. Additional background
The trial court instructed the jury with CALCRIM No. 362 as follows: "If the defendant made a false or misleading statement before this trial relating to the charged crime knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
2. Legal principles and standard of review
"In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.) "It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference. [Citations.]" (People v. Hannon (1977) 19 Cal.3d 588, 597.) Whether there is evidence from which a trier of fact can infer consciousness of guilt is a question of law that we independently review. (Ibid.; People v. Romo (1990) 220 Cal.App.3d 514, 519.)
3. CALCRIM No. 362 was supported by the evidence
In this case, the CALCRIM No. 362 instruction was supported by evidence that Gonzalez gave a false name and date of birth to the sheriff's deputy when he was discovered lying prone in the bushes outside the burglarized property. It is well-settled that giving the police a false name shows a consciousness of guilt. (People v. Watkins (2012) 55 Cal.4th 999, 1028; People v. Manson (1976) 61 Cal.App.3d 102, 149 (Manson) ["The use of an alias is circumstantial evidence of consciousness of guilt."].)
Furthermore, CALCRIM No. 362 is conditional, in that the jury is specifically instructed that it must first decide whether Gonzalez's pretrial statements were false and misleading before it could then consider whether the statements indicated an awareness of guilt on Gonzalez's part. The jury would decide what meaning and weight to ascribe to the statements but was specifically told that it could not use the fact that Gonzalez made the statements by itself to establish his guilt.
Gonzalez's reliance on People v. Fritz (2007) 153 Cal.App.4th 949 (Fritz) is not persuasive as that case is readily distinguishable. In Fritz, after the defendant stipulated to two prior shoplifting convictions, the "parties agreed that the court would not read the allegations concerning [those] priors to the jury." (Id. at p. 954.) Nevertheless, the prosecution sought to introduce evidence of those convictions under Evidence Code section 1101, subdivision (b) and, alternatively, to impeach the defendant's post-arrest statement that he had never before engaged in shoplifting. (Fritz, at p. 954.) The trial court concluded the prior offenses were not sufficiently similar to qualify for admission under Evidence Code section 1101, subdivision (b), but ultimately allowed the prosecution to introduce, as consciousness of guilt evidence, both the defendant's postarrest statement and proof of his prior shoplifting convictions. (Id. at p. 955.) The Court of Appeal reversed, explaining that the defendant's statement denying that he had ever shoplifted "was apparently intended to mislead the police as to an issue which was ... 'in no way relevant to the issues'; i.e., his disposition to commit the crime. (See § 1101, subd. (b).)" (Fritz, supra, at p. 958.) "Moreover, not only was the evidence of that lie _ 'seriously prejudicial to the defendant because it indicates to the jury that he is a dishonest person,' it was particularly prejudicial in this case because it also revealed the forbidden 'disposition' evidence-something the jury was otherwise prohibited from hearing." (Id. at pp. 958-959.)
The facts here are entirely different. Gonzalez was not attempting to mislead police about his disposition to commit burglaries or other crimes by providing a false name and date of birth. His use of an alias was circumstantial evidence that he was aware of his guilt and sought to mislead the police as to his involvement in the burglary of the property where he was discovered.
4. Any error was harmless
Even assuming the trial court erred by giving the instruction, we conclude that the error was harmless.
In People v. Guiton (1993) 4 Cal.4th 1116, the California Supreme Court has directed that we apply Watson in evaluating whether the use of a jury instruction not supported by the evidence amounted to prejudicial error. "Under Watson, reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred. [Citation.]" (Id. at p. 1130.)
People v. Watson (1956) 46 Cal.2d 818 (Watson)
In this case, it is not reasonably probable that the result would have been more favorable to Gonzalez had CALCRIM No. 362 not been given. The jury saw the video surveillance showing Gonzalez inside the home and heard the testimony describing how he was subsequently found underneath the bushes outside the house. Even without the consciousness of guilt instruction, the jury had ample evidence to find Gonzalez guilty of first degree burglary.
In examining CALJIC 2.03, the predecessor to CALCRIM No. 362, the California Supreme Court noted that, in addition to showing consciousness of guilt, the "cautionary nature of the instruction[] benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.]" (People v. Jackson (1996) 13 Cal.4th 1164, 1224, italics added,)
B. Response to jury question
Gonzalez next argues the trial court erred during deliberations in responding to the jury's request for a definition of the term "dwelling." In his view, the trial court was required to inform the jury that a "dwelling" is not simply a structure in which people live, but that it must also be currently used for that purpose. To the extent that the court finds this claim forfeited due to trial counsel's failure to object, Gonzalez contends that his counsel was constitutionally ineffective.
The Attorney General responds that trial counsel's failure to object below has forfeited the claim but also argues that the trial court did not err in responding to the jury's question.
Because we reject Gonzalez's claim on the merits, we will not address the issue of forfeiture and need not address the issue of ineffective assistance of counsel.
1. Additional background
At the conclusion of evidence, the court instructed the jury with CALCRIM No. 1701 on the two degrees of burglary: "Burglary is divided into two degrees. If you conclude that the defendant committed a burglary, you must then decide the degree. [¶] First degree burglary is the burglary of an inhabited house or a room within an inhabited house. [¶] A house is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged entry. [¶] A house is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside. [¶] All other burglaries are second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the burglary was first degree burglary. If the People have not met this burden, you must find the defendant not guilty of first degree burglary."
During deliberations, the jury sent the court a note that posed the following two questions: (1) "If we (the jury) are not sure if we can find the defendant guilty of [first degree burglary] but [second degree burglary] how do we proceed. Or, is this even an option[;]" and (2) [what is the] legal definition of dwelling." The record does not contain a transcript of the proceedings where these questions were discussed, but both the prosecutor and defense counsel signed the trial court's response: "A dwelling is defined as a shelter in which people live. I will address your other question in the courtroom shortly."
2. Legal principles and standard of review
On appeal, the court "review[s] de novo the legal accuracy of any supplemental instructions provided" by the trial court. (People v. Franklin (2018) 21 Cal.App.5th 881, 887.) "When an appellate court addresses a claim of jury misinstruction, it must assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner." (People v. Wilson (2008) 44 Cal.4th 758, 803 (Wilson).) "We of course presume 'that jurors understand and follow the court's instructions.'" (Ibid.)
3. Analysis
Here, in response to the jury's request for the "legal definition of [a] dwelling[,]" the trial court responded that a dwelling "is defined as a shelter in which people live."
We do not agree with Gonzalez that the jury need also have been told that a "dwelling" must also be "currently used" as a living space. First, this additional verbiage is at odds with the legal definition of an "inhabited house" since "currently used" can be read to imply that the occupants must be present at the time of the offense.
Second, and more importantly, the jury had already been instructed on how to decide whether a structure is inhabited or not by CALCRIM No. 1701. That instruction informed the jury that a house "is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged entry." (CALCRIM No. 1701, italics added.) The instruction then states that: "A house is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside." (CALCRIM No. 1701, italics added.) D.S. testified that he spent the night prior to the burglary at the property on Seventeen Mile Drive and that he and his family stayed there on occasional weekends even as it was being remodeled.
Reading the instruction as a whole, we conclude there was no reasonable likelihood the jury misapplied the court's response to its question.
C. Denial of Romero motion
Finally, Gonzalez argues the trial court abused its discretion in denying his motion to dismiss his prior strikes in that it did not consider his drug addiction or his acceptance into a residential drug treatment program. We conclude the trial court acted within its discretion in denying the motion.
1. Additional background
Prior to sentencing, Gonzalez filed a motion to dismiss his prior strike convictions pursuant to section 1385 and Romero. In support of that motion, he attached letters of support from family, friends, and coworkers, as well as a letter indicating that he had been accepted into a residential drug and alcohol treatment program.
At the outset of the sentencing hearing, the trial court stated that it had "received and reviewed the probation report, the request for victim restitution, the motion to dismiss the strike priors pursuant to 1385[, subdivision] (a) [and] Romero, [the] People's response to the Romero motion, [and the] Defense sentencing memorandum with all the attached letters." Defense counsel expressly mentioned that Gonzalez had been accepted into the residential drug treatment facility during her remarks.
Before pronouncing sentence, the trial court denied the Romero motion, explaining that Gonzalez had been out of custody "for a period of time" and had a family yet "continued to commit residential burglaries." After noting that it had taken into consideration "the totality of the circumstances, the constitutional rights of the defendant, the interests of society represented by the People, the defendant's background and prospects, including the presence or absence of any significant criminal record[,]" the trial court stated that its conclusion was "drive[n]" by Gonzalez's extensive criminal record, beginning with two juvenile adjudications in 2001 and 2003. The trial court also noted that Gonzalez was twice granted parole yet violated his parole both times and committed the instant offense while on parole. In the trial court's view, dismissing the prior strike convictions "would endanger public safety."
2. Legal principles and standard of review
"The purpose of the Three Strikes law is 'to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.' [Citation.]" (In re Young (2004) 32 Cal.4th 900, 909.) However, under the Three Strikes law, a trial court "may exercise the power to dismiss granted in section 1385" to dismiss a prior strike allegation. (Romero, supra, 13 Cal.4th at p. 504.) "In ruling on a Romero motion, the court must consider whether 'the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies.' [Citation.] Thus, the Three Strikes law establishes a 'strong presumption' in favor of a harsher sentence and requires the court to explicitly articulate its reasoning if it is to depart from a harsher sentence by granting the Romero motion. [Citation.]" (People v. Salazar (2023) 15 Cal.5th 416, 428.)
"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First,' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citation.] Second, a' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377.)
3. Analysis
It is true that the trial court did not mention Gonzalez's drug addiction or his acceptance into a residential treatment program in reciting the reasons why it was denying his Romero motion. However, it did state that it had reviewed Gonzalez's motion and the attached letters, including the letter from the drug treatment program, and defense counsel expressly raised that program at the sentencing hearing. Therefore, we must presume that the trial court considered that information. While Gonzalez's drug addiction may have been a factor in favor of dismissing one or more of his prior strikes, many other factors weighed against doing so, including his failure to refrain from criminal activity when he was out of custody, his inability to complete parole, as well as the nature of his offenses, i.e., residential burglaries, which involved a high risk of violent confrontation. The trial court's ruling was not "so irrational or arbitrary that no reasonable person could agree with it," and thus the trial court did not abuse its discretion in denying Gonzalez's Romero motion. (Carmony, supra, 33 Cal.4th at p. 377.)
III. Disposition
The judgment is affirmed.
WE CONCUR: Greenwood, P.J., Bamattre-Manoukian, J.