Filed 9/13/13 P. v. Perez 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F065063
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. SF016440A)
                   v.

MARTIN ARMANDO PEREZ,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Judith K.
Dulcich, Judge.
         Conness A. Thompson, 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, Kathleen A. McKenna and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Cornell, Acting P.J., Detjen, J. and Franson, J.
                                    INTRODUCTION
       Appellant Martin Armando Perez was convicted after jury trial of first degree
burglary and sentenced to four years’ imprisonment. (Pen. Code, § 460, subd. (a).)1
Appellant challenges the sufficiency of the evidence supporting the guilty verdict and
argues that he is entitled to additional custody credits. Neither contention is persuasive.
The judgment will be affirmed.
                                          FACTS
       During the evening of January 16, 2010, Hilario Tellez, Sr. and his wife, Beatrice
Chavez, ran some errands. While they were away, their house was burglarized and a flat
screen television and a computer were stolen. The burglar or burglars entered the house
by forcing open a bedroom window. Chavez and Tellez found two cigarette butts lying
on the garage floor next to Tellez’s truck.
       In August 2011, police took a buccal swab from appellant. His DNA profile
matched DNA that was found on one of the cigarette butts. 2 Chavez and Tellez do not
know appellant and never invited him into their home.
       Appellant told a police officer that he smoked. He denied committing the
burglary, saying “I’ll be honest. I steal cars. I didn’t do that, though.”
       Appellant’s younger brother, Juan Carlos Perez, testified that “at some point,
approximately two years ago, thereabouts” appellant drove him to the house that was
burglarized. Appellant stopped the car in front of the driveway. Juan knocked on the
front door, which was opened by the residents’ son. Appellant did not pull his car into
the driveway or get out of the car. Juan did not recall if the garage door was open or
closed. Juan testified that appellant is a heavy smoker who typically flicks his cigarette


1      Unless otherwise specified all statutory references are to the Penal Code.
2      The other cigarette butt was not analyzed.



                                              2.
butts out the car window. Juan did not see appellant flick any cigarette butts out of the
car window while the car was stopped in front of the driveway.
       The burglarized house is located in Shafter, California. The wind speeds in
Shafter on January 16, 2010, were between 3.57 and 9.90 miles per hour.
                                       DISCUSSION
I.     The Conviction Is Supported By Substantial Evidence.
       Appellant challenges the sufficiency of the evidence supporting the burglary
conviction. His arguments are not convincing. As will be explained, the guilty verdict is
supported by the required modicum of evidence.
       “When a defendant challenges the sufficiency of the evidence, ‘“[t]he court must
review the whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence which is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” [Citation.]’ [Citations.]” (People v. Clark (2011) 52
Cal.4th 856, 942-943 (Clark).) “In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence.” (People v.
Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) “Even when there is a significant
amount of countervailing evidence, the testimony of a single witness that satisfies the
standard is sufficient to uphold the [disputed] finding.” (People v. Barnwell (2007) 41
Cal.4th 1038, 1052.) “‘Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no



                                               3.
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict. [Citation.]” (Zamudio, supra, 43 Cal.4th at p. 357.)
       “The same standard governs in cases where the prosecution relies primarily on
circumstantial evidence. [Citation.]” (Zamudio, supra, 43 Cal.4th at p. 357.)
“‘Substantial evidence includes circumstantial evidence and any reasonable inferences
drawn from that evidence. [Citation.]’ [Citation.]” (Clark, supra, 52 Cal.4th at p. 943.)
“We ‘must accept logical inferences that the jury might have drawn from the
circumstantial evidence. [Citation.]’ [Citation.]” (Zamudio, supra, at p. 357.) When the
circumstances reasonably justify the trier of fact’s findings, the appellate court’s
conclusion that the circumstances might also reasonably be reconciled with a contrary
finding does not warrant reversal of the judgment. (Id. at p. 358.)
       Appellant argues “[t]he prosecution failed to present evidence sufficient for the
jury to reasonably infer that [he] dropped the cigarette butt in the garage at the time of the
burglary and not in or near the garage at an earlier time.” We disagree. Chavez and
Tellez testified that they searched the garage after they realized their home had been
burglarized and found two cigarette butts lying on the floor. Chavez testified that the
cigarette butts were not on the garage floor when she and Tellez left to run errands prior
to the burglary. Tellez and Chavez testified that no one who lives in the home smokes
and they do not know appellant and never gave him permission to be in their home.
Appellant’s DNA profile matched DNA found on one of the cigarette butts. Juan
testified that appellant is a heavy smoker. From this testimony a jury could reasonably
infer that appellant dropped the cigarette butts on the garage floor during the burglary.
       Appellant contends that he could not have entered the garage because the interior
door between the kitchen and garage was locked when Chavez and Tellez returned home
from their errands. This argument fails because there was no evidence that this interior
door did not have the common type of locking mechanism that allows one to lock and
unlock it from one side of the door without a key. There was no testimony that a key was

                                              4.
required to lock and unlock this door. The jury could have found that appellant entered
the house through the bedroom window, unlocked the interior door between the kitchen
and garage, walked through this door into the garage and then returned into the house
through this door.
       Finally, appellant argues there was testimony legitimately placing him at the
location of the burglarized house and, therefore, his DNA at the crime scene is
insufficient to support the verdict. We are not convinced. Chavez testified that the
cigarette butts were not on the garage floor when she and Tellez left to run errands and
were lying on the floor when they returned home. Therefore, appellant’s act of dropping
his brother off in front of the house is relevant only if it occurred while Chavez and
Tellez were running errands on the evening of the burglary. Appellant did not produce
such evidence. Juan testified that appellant dropped him off in front of the burglarized
house “at some point, approximately two years ago, thereabouts.” There was no evidence
that this event occurred on the same evening as the burglary.
       Several cases are analogous to this situation. In People v. Tuggle (2012) 203
Cal.App.4th 1071, 1075-1077, a burglary conviction was upheld where the defendant’s
fingerprints were found on a vase in a burglarized home and the defendant said that he
had not been in the home for the previous two years. In People v. Preciado (1991) 233
Cal.App.3d 1244, 1246-1247, a claim of insufficiency of the evidence was rejected where
the defendant’s fingerprints were found on a wristwatch box inside a burglarized
condominium and the victim did not know the defendant. In People v. Ramirez (1931)
113 Cal.App. 204, 205-207, the defendant’s fingerprint on a suitcase that was found
inside a burglarized store was sufficient to uphold a burglary conviction.
       For all of these reasons, we hold that the record contains adequate evidence from
which a jury could find beyond a reasonable doubt that appellant left a cigarette
containing his DNA on the floor of the garage during the commission of the burglary and



                                             5.
not at some other prior time. Since the guilty verdict is supported by substantial
evidence, it did not infringe appellant’s federal constitutional due process rights.

II.    Appellant’s Custody Credit Award Did Not Violate His Equal Protection
       Guarantee.
       Under section 2900.5, a person sentenced to state prison for criminal conduct is
entitled to presentence custody credits for all days spent in custody before sentencing.
(§ 2900.5, subd. (a).) In addition, section 4019 provides for what are commonly called
conduct credits. Section 4019 has undergone numerous amendments in the past few
years. Under the version in effect prior to January 25, 2010, six days would be deemed to
have been served for every four days spent in actual custody. (Former § 4019, subd. (f),
as amended by Stats. 1982, ch. 1234, § 7, pp. 4553-4554.) Section 4019 was amended
during 2011 to increase this ratio to one-for-one credits. (§ 4019, subds. (b), (c), as
amended by Stats. 2011, ch. 15, § 482.) The legislation expressly provided that this
change “shall apply prospectively ... for a crime committed on or after October 1, 2011.
Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate
required by the prior law.” (§ 4019, subd. (h), as added by Stats. 2011, ch. 15, § 482 and
amended by Stats. 2011, ch. 39, § 53.)
       Appellant was awarded a total of 285 custody credits, which were calculated at the
“two for four” rate. He argues that the federal constitutional equal protection guarantee
entitles him to a one-for-one credit award. We are not persuaded.
       People v. Rajanayagam (2012) 211 Cal.App.4th 42, held that the amendment to
section 4019 awarding less conduct credits to those defendants who committed their
offenses between September 28, 2010 and September 30, 2011, than those defendants
who committed their offenses on or after October 1, 2011, bears a rational relationship to
the Legislature’s legitimate state purpose of reducing costs. The Rajanayagam court
explained that in choosing October 1, 2011, as the effective date of the amended statute,
“the Legislature took a measured approach and balanced the goal of cost savings against


                                              6.
public safety.” (Rajanayagam, supra, at p. 55.) It continued, “Under the very deferential
rational relationship test, we will not second-guess the Legislature and conclude its stated
purpose is better served by increasing the group of defendants who are entitled to
enhanced conduct credits when the Legislature has determined the fiscal crisis is best
ameliorated by awarding enhanced conduct credit to only those defendants who
committed their offenses on or after October 1, 2011.” (Id. at p. 56.)
       There is a second rational basis for the classification at issue. In People v.
Kennedy (2012) 209 Cal.App.4th 385, the appellate court determined that the Legislature
rationally could have believed that by making the application of the amendments to
section 4019 dependent on the date of the crime, the deterrent effect of the criminal law
as to crimes committed before that date was being preserved. (Id. at pp. 398-399.) The
Kennedy court explained: “To reward appellant with the enhanced credits of the
[October] 2011 amendment to section 4019, even for time he spent in custody after
October 1, 2011, weakens the deterrent effect of the law as it stood when appellant
committed his crimes. We see nothing irrational or implausible in a legislative
conclusion that individuals should be punished in accordance with the sanctions and
given the rewards (conduct credits) in effect at the time an offense was committed.” (Id.
at p. 399.)
       We find Rajanayagam and Kennedy to be well-reasoned and persuasive.
Following and applying these decisions, we reject appellant’s equal protection challenge.
                                      DISPOSITION
       The judgment is affirmed.




                                             7.
