THE PEOPLE v. Richard Salazar, Defendant and Appellant. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Richard Salazar appeals from the judgment entered following a jury trial which resulted in his conviction of second degree burglary (Pen.Code, § 459).¹  The trial court sentenced Salazar to one year, four months in prison.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

On April 3, 2009, Tony Zanizales owned a white, 1997 Honda Accord.   At approximately 7:00 o'clock that evening, Zanizales drove his Accord to the Pacific Movie Theaters on Nash Street in El Segundo and parked on the second floor of the adjacent parking structure.   He rolled up all the windows and locked the car's doors.

When Zanizales returned to his car at approximately 10:00 p.m., he found that “the console where the stereo goes” was missing.   Missing from the trunk was “[t]he speaker box.”   Also missing from the car was an “Iphone.”   On the windshield of his car, facing the dashboard, was a card telling Zanizales to go to the El Segundo Police Station.

Zanizales went to the station and spoke with an officer named Ken Cheng.   Officer Cheng showed to Zanizales his stereo, his speaker box and his Iphone.   Zanizales told the officer that he had not given anyone permission to enter his car or to take his stereo, speaker box or Iphone while he was at the movies.

Sirena Smith is a “911 dispatcher.”   At approximately 7:40 p.m. on April 3, 2009, Smith received a call from an anonymous caller who stated that she was sitting in her parked car in the lot at the El Segundo Pacific Theaters.²  The caller stated:  “I'm trying to talk really fast because they broke in the car and they had two females with them.”   The caller indicated that two men and two women arrived at the parking lot in a silver, two-door Honda Civic and were breaking into a four-door Honda.   When Smith asked how long ago this had happened, the caller stated:  “They're doing it right now.  [¶] ․ [¶] ․ I'm watching them doing it.   I'm sitting in my car right now.”   The caller indicated that both men were Hispanic, were wearing hats and appeared to be teenagers.   The caller indicated that the man who actually broke into the Honda appeared to be between 18 and 21 years old, was wearing blue jeans, a cap, a white shirt and a gray hooded sweatshirt.   His companion, a male Hispanic, also appeared to be between 18 and 21 years old and had on a white shirt and a blue baseball cap.

Smith sent a police officer who was on patrol in the area to the parking structure.   When the officer arrived, Smith asked the anonymous caller if the young men who had broken into the Honda were still there.   The caller responded, “Yea, the police officer actually stopped him.   He went right by there.”

Wishing to remain anonymous, the caller walked to a different level of the parking structure as she continued to talk with Smith.   She told Smith that the young men had opened the door to the car, then “popped the trunk.”   The caller continued, “And, they took the speakers out and put the stuff in their car.”   After then telling Smith that she was “terrified” and did not want to go to court, the caller ended the call.

On April 3, 2009, El Segundo Police Officer Ken Cheng was working a “special detail” at the El Segundo Pacific Theaters on Nash Street.   At approximately 7:30 p.m., he was across the street from the theater's parking structure when he received a radio call directing him to investigate a “459,” or burglary, which was taking place in the structure.   Cheng ran across the street to his patrol car, “entered the vehicle [and] drove up the ramp from the first floor to the second floor.”   As he drove up, the officer saw Salazar, accompanied by a “male Hispanic” and “two female Hispanics,” walking down the second floor ramp.   Cheng continued to drive up the ramp to the second level where he looked for the car which had been burglarized.   Right at the transition from the first floor to the second floor, the officer saw a white Honda four-door with all of its door locks in the “unlock[ed]” position.   Inside the car, items were strewn about and it appeared that it had been “ransacked,” Upon further inspection, Cheng noted that the plastic housing of the center console area had been ripped out and wires were exposed where the radio had been.   In the trunk of the car, it looked as though a “speaker box” had been taken.   Wires were exposed and, although there were “two amps,” there were no speakers.   In addition, items in the trunk had been strewn about and it, too, looked as though it had been “ransacked.”

While Cheng had been inspecting the Honda, other officers had detained Salazar and his companions.   A search of Salazar's male companion revealed a “shaved down little wrench that appeared to resemble ․ a shaved down key” and an “Iphone.”   From one of the women, an officer had obtained a set of car keys, which he gave to Cheng.   When Cheng pushed the “car remote,” the lights on a silver Honda Civic parked approximately 30 feet from the white Honda began to flash.   Cheng approached the Civic and, after inspecting it with his flashlight, “entered the [car] and opened the trunk to check the items inside.”   From the trunk of the Civic, Cheng recovered a “speaker box and a razor scooter,” and a “stereo head unit and a cable converter box.”   Cheng took the items to the station where he logged them into evidence.   However, before leaving the parking structure, Cheng left a card on the windshield of the white Honda Accord directing its owner to come to the station.

On April 3, 2009, Melissa Barrientos was Salazar's girlfriend.   At approximately 7:00 p.m., she had driven Salazar and two friends, Stephanie Puido and David Valdez, to the El Segundo movie theater in a silver Honda Civic.   Barrientos parked the Civic on the second level of the parking structure, then walked down the ramp to the first level with Puido.   While Barrientos and Puido went to buy tickets to a movie, Salazar and Valdez remained on the second level of the parking garage.   After two or three minutes, before she reached the theater, Barrientos realized that she needed money for the tickets.   She and Puido turned around and walked back up to the second level, found Salazar standing by the Civic and asked him for some money.   Salazar gave Barrientos money and the four of them, Barrientos, Salazar, Puido and Valdez, started to walk down the ramp.   However, before they reached the first level, “cops got there and [they] all got arrested.”

Barrientos gave one of the police officers permission to search her Civic, but was not there when he opened the trunk.   Although she did not know how it had happened, she later found out that some speakers and stereo equipment were found there.

Barrientos spoke with an officer named Glenn Delmendo.   At trial, she testified that she had not told Delmendo that she and Puido “started walking towards the theater because Salazar ․ said go ahead while they did something by [her] car.”   Neither had she told Delmendo that when she and Puido were half-way down the ramp, Salazar “came up behind [her] and asked [her] for keys to [her] car.”   She had not told Delmendo that, after Salazar asked her for the keys to her car, he told her that he had “a speaker box and a stereo that he wanted to put in the trunk.”   Finally, she had not told Delmendo that, after giving him the keys to her Civic, she waited for Salazar at the bottom of the ramp.

On the evening of April 3, 2009, Stephanie Puido went to the theater with her boyfriend, David Valdez, and two friends, Melissa Barrientos and Richard Salazar.   The four individuals drove to the El Segundo theaters in Barrientos's gray car and Barrientos parked in the adjacent parking structure.   When they got out of the car, Barrientos and Puido went to purchase tickets.   But, according to Puido, “[t]he guys wanted to stay behind.”   Puido testified that Salazar and Valdez “told [her and Barrientos] to just walk ahead and [they] just did.”

Puido also spoke with Officer Delmendo that night.   She had not told the officer that Salazar and Valdez “were going to stay behind and go searching.”   Puido stated:  “I didn't say nothing about searching.   I said they were just looking at the cars because guys, you know, they like cars.”   Puido stated that, after she and Barrientos had been walking for approximately five minutes, they realized they did not have money to buy the tickets and they went back to where the Civic was parked.   Salazar and Valdez were standing by the car and, as the two women approached, Salazar asked Barrientos for the keys to the Civic.   He indicated that he had something he wished to put in the car.   Barrientos gave Salazar the keys and he opened the car and placed something inside.   Puido could not see what it was, but the item was not very large.

El Segundo Police Officer Glenn Delmendo worked on a “special detail” at the Pacific Movie Theaters off of Rosecrans and Nash Street.   At approximately 7:30 p.m. on April 3, 2009, he received a call directing him to the parking structure on Nash. When the officer first arrived, he saw that “two other officers had stopped a group of [four] subjects about halfway up the ramp.”   Delmendo spoke with one of the two women in the group, Melissa Barrientos.   Barrientos told Delmendo that she had driven to the movies in her car with her boyfriend, Salazar, and two other individuals.   She had parked on the second level and, after getting out of the car, Salazar and the other man in the group, Valdez, told her and Puido to go ahead, “down to the theaters.”   Salazar had told Barrientos that they, the two men, would “catch up.”   Barrientos told the officer that she was approximately half-way down the ramp when Salazar came running down, caught up with her and asked her for her car keys.   He told Barrientos that he had some “items” that he wished to put in her trunk.   Barrientos gave Salazar the keys, then waited for him at the “halfway point [on] the ramp.”   When Delmendo asked Barrientos what the “items” were, she said that she did not know but that she believed they came from another car in the parking structure.

Delmendo also spoke with Stephanie Puido.   She told the officer that the four of them had come to the theaters to see a movie.   When they arrived, Salazar and Valdez told the two women to “go down to the theaters.”   Valdez told Puido that he and Salazar were going to go “searching.”   The two women walked toward the theaters and, when they were approximately halfway down the ramp of the parking structure, Salazar ran up behind them and asked Barrientos for the keys to her car.   Salazar told Barrientos “that he had ․ [a] speaker box and a stereo” to put in the trunk.   Puido told Delmendo that Barrientos gave the keys to Salazar and that she and Barrientos then waited on the ramp for the two men to join them.   In the meantime, police officers arrived.

All four individuals, Salazar, Barrientos, Puido and Valdez were placed under arrest and questioned.   At the time of his arrest, Salazar was wearing a sweatshirt over another shirt.

2. Procedural background.

Following a preliminary hearing, on May 12, 2009 an information was filed charging Salazar with one count of “second degree burglary of [a] vehicle” in violation of section 459, a felony.   After Salazar rejected a “dispositional offer,” the matter was scheduled for trial.

Trial was by jury.   In discussing the instructions, Salazar's counsel asked that the jury be instructed on “tampering with a vehicle.”   The trial court refused, stating that Salazar had not done anything that could be described as tampering.   The court explained:  “I can understand you being able to make the argument that your client wasn't involved, but whoever was involved here, it se [e]ms to me, participated in a complete burglary and not just a tampering.”

During deliberations, the jury sent the following request to the trial court:  “We would like to know the difference between 1st & 2nd degree theft.   [¶] We would like to hear the 911 tape.  [¶] We wou[l]d like Officer Delmendo's testimony re[-]read to us.”   After consulting with counsel, the trial court sent the following message in response:  “1) There is no issue for you to decide regarding the degree of theft.  [¶] 2) We will play the CD in court.   [¶] 3) Yesterday's court reporter is assigned today to downtown Los Angeles.   We are in the process of contacting her.   Is it possible to narrow your request?”   The jurors then indicated that they wished to hear Delmendo's “testimony regarding his interviews with the two young women.”

After further deliberation, on August 26, 2009 the jury found Salazar guilty of “Second Degree Burglary of [a] Vehicle, a violation of ․ [s]ection 459, a felony, as charged in Count 1 of the Information.”

Sentencing proceedings were held on January 26, 2010.   For his conviction of the burglary of a vehicle the trial court sentenced Salazar to 16 months in state prison, the term to run concurrently with any other term imposed.   Salazar had been sentenced on another matter on January 7, 2010 and he was, accordingly, awarded presentence custody credits for time served from April 28, 2009 to January 7, 2010, or a total of 255 days.   In addition, he was granted 255 days of conduct credit (§ 4019), for a total of 510 days.   Salazar was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a suspended $200 parole revocation restitution fine (§ 1202.45), a $30 court security fee (§ 1465.8, subd. (a)(1)) and a $30 criminal conviction assessment fee (Gov.Code, § 70373).   The trial court noted that the victim in this matter might be entitled to restitution for the property taken.   Salazar, however, waived his right to be present at a restitution hearing.

Salazar filed a timely notice of appeal on January 26, 2010.

This court appointed counsel to represent Salazar on appeal on May 18, 2010.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed July 22, 2010, the clerk of this court advised Salazar to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider.   No response has been received to date.

REVIEW ON APPEAL

We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities.  (Smith v. Robbins (2000) 528 U.S. 259, 278-284;  People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. The jurors heard a tape recording and were each given a transcript of the 911 call..  FN2. The jurors heard a tape recording and were each given a transcript of the 911 call.

KITCHING, J. ALDRICH, J.