Filed 5/8/14 P. v. Gentry CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----



THE PEOPLE,                                                                                  C072735

                   Plaintiff and Respondent,                                   (Super. Ct. Nos. 62-104648A
                                                                                     & 62-092242B)
         v.

CORY JAMES GENTRY,

                   Defendant and Appellant.




         A jury convicted defendant Cory James Gentry of three counts of first degree
burglary (Pen. Code, § 459). Sentencing defendant on this and an unrelated drug
possession case, the trial court imposed a state prison term of seven years four months.
         On appeal, defendant contends one of the burglary counts should be reversed for
insufficient evidence, the trial court erred in admitting his statement that he committed 12
burglaries, and if the statement was admissible, the trial court was required to give a
limiting instruction. We affirm.




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                                    BACKGROUND
       PROSECUTION CASE
       Miners Way Burglary
       On February 16, 2011, Tamra Nemecek arrived at her home at 1299 Miners Way
in Roseville around 2:00 p.m. Noticing the outside door to the garage was broken and the
door from the kitchen to the garage was open, she called the police. She went into the
house and discovered her jewelry box was missing. At trial, Nemecek identified the
stolen jewelry box, rings, and some medication she kept in the box.
       Meanwhile, Roseville Police Officer Ken Nakamura was patrolling in the
neighborhood, which had been hit by a rash of burglaries, when he made contact with
Andrew Padilla in response to a report of a suspicious person at a door. Padilla’s cell
phone contained a text saying someone needed Padilla’s backpack. Officer Nakamura
heard the dispatch about the Miners Way burglary during his communication with
Padilla. He responded to the call, and saw defendant, wearing jeans and a dark
sweatshirt, talking on his cell phone in the driveway of 1308 Miners Way. Defendant
then went into the backyard of the home.
       At about the same time, Mark Onderko, who lived at 1305 Miners Way, saw a
man hunched down in front of his truck. The White man was about five feet 10 inches
tall, in his early 20’s, had medium length brownish blond hair, and wore a zipped up
hoodie. After about one minute, the man picked up a wooden box, looked up and down
the cul-de-sac, and then carried the box to a neighbor’s house, where he went into an
alcove to the front door. The man then returned to the front of the house, now without
the box, and went around the house, through a gate, and into the backyard. When Officer
Nakamura showed up, Onderko directed the officer to the backyard, but the man could
not be found. Onderko then directed Officer Nakamura to the box the man hid by the
front door. The box was Nemecek’s stolen jewelry box.



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      Officer Nakamura, recalling his earlier contact with Padilla and the phone text,
was able to link the text message to defendant’s name at a nearby address on Crestmont
Avenue. Officer Nakamura took Onderko to a field lineup at the Crestmont Avenue
address, where he identified defendant as the man with the box. Officer Nakamura also
recognized defendant as the person he pursued earlier.
      Defendant was arrested, taken to the police station, and questioned that day. He
admitted burglarizing the home by forcing the door open with a knife. Defendant said
Antonio Dykes dropped off Padilla and took defendant to the area to look for homes to
burglarize. Defendant led officers to some stolen items he had hidden, including the
location of the wooden jewelry box hidden at 1308 Miners Way, which Officer
Nakamura had already found.
      Sheridan Avenue Burglary
      On January 19, 2011, Yvonne Tibbets arrived at her home at 1310 Sheridan
Avenue in Roseville and found an unfamiliar “kid” outside her house on a bicycle. The
back door to her house was unlocked and a bathroom window was broken. Glass, blood,
and a muddy footprint were on the bathroom floor. Several pieces of jewelry and several
hundred dollars were missing from her home. Defendant’s fingerprints were at the home,
and his DNA matched that taken from the blood in the bathroom.
      The “Castle” Burglary
      On February 10, 2011, Sharon Dalton and her husband Paul Dalton lived at 700
Elisa Way, a house known as “Jerry Lee’s Castle.” The Daltons arrived at their home
and found it had been burglarized. Sharon saw the burglar as he came back into the
house. According to Sharon, the burglar was of medium height, skinny, had blond hair,
and carried bags in his hands. Among the items taken was a pearl necklace.
      Paul Dalton testified that the burglar was a skinny young man with blondish hair
who moved very quickly. The doors at his home should have been locked, but he found
no damage to the doors and windows.

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         Sharon identified defendant as the burglar at trial. At a photographic lineup
conducted on the day she testified, she identified a person other than defendant as the
burglar. Paul could not identify anyone at the lineup and could not identify defendant in
court.
         An officer showed a pearl necklace recovered during the investigation to Sharon,
who said it was not hers. Another officer showed jewelry found at Antonio Dykes’s
house to Sharon for possible identification. Sharon identified a pearl necklace as the one
stolen from her home.
         The officer returned to Dykes’s house and confronted him about participating in
the burglaries. Dykes said he got all of the jewelry from defendant. He initially denied
participating in the burglaries, but eventually admitted driving defendant and Padilla,
although he did not know what he was doing. Dykes did not implicate defendant until he
learned defendant was arrested.
         Dykes testified under a grant of immunity. He had been convicted of
misdemeanor receiving stolen property in connection with defendant’s case. He was
close friends with defendant; he knew Padilla but was not close to him. He drove
defendant and Padilla to the South Cirby area in Roseville to commit residential
burglaries so they “could all get loaded.” Dykes did not enter the properties, but drove
defendant and Padilla there, and kept the stolen property at his home. A police officer
came to his home a couple of times and found various pieces of jewelry there. The
jewelry, which defendant gave to him, “apparently” was stolen.
         In his police interview, defendant explained that one of the group would ring the
doorbell or knock on the home’s door. They would leave if someone answered. If no
one answered, some would act as lookouts while one or two members would enter the
home through a back door or by opening or breaking a window. Defendant admitted
committing 12 burglaries between August 2010 and February 2011.



                                              4
       THE DEFENSE
       Testifying on his own behalf, defendant claimed he was at “rock bottom” from late
2010 to early 2011. He was using heroin, had been disowned by his family, and his
friends would not talk to him. He stole to support his drug habit. He lived in Sacramento
County, but committed the burglaries in Roseville as he thought this would make it
harder for the police to find him. He admitted committing the Sheridan Avenue and
Miners Way burglaries, but denied committing the Castle burglary.
       Dykes drove defendant to the Sheridan Avenue burglary, and defendant and
Padilla to the Miners Way burglary. Defendant gave items stolen from Sheridan Avenue
to his good friend Dykes. On visits to Dykes’s home he often saw items he thought were
stolen. Other members of their circle were also thieves.
       Defendant admitted being involved in 12 residential burglaries. His statement that
he entered all 12 houses was wrong as he was going through drug withdrawal during the
interview. He had accomplices on many of the burglaries. Defendant could not recall the
specific houses he entered or helped to burglarize. He would have remembered
burglarizing a house that looked like a castle.
                                       DISCUSSION
                                              I
       Defendant contends there is insufficient evidence to sustain his conviction in count
two for burglarizing the “Castle.” We disagree.
       “ ‘In reviewing the sufficiency of evidence under the due process clause of the
Fourteenth Amendment to the United States Constitution, the question we ask is
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” ’ [Citation.] We apply an identical standard under the California
Constitution. [Citation.] ‘In determining whether a reasonable trier of fact could have
found defendant guilty beyond a reasonable doubt, the appellate court “must view the

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evidence in a light most favorable to respondent and presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the evidence.” ’
[Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1175, italics omitted.) In
reviewing the sufficiency of the evidence, “a reviewing court resolves neither credibility
issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in
the testimony is the exclusive province of the trier of fact. [Citation.]” (Id. at p. 1181.)
We will reverse for insufficient evidence only if “ ‘ “ ‘upon no hypothesis whatever is
there sufficient substantial evidence to support [the conviction].’ [Citation.]” ’ ” (People
v. Manriquez (2005) 37 Cal.4th 547, 577.)
       Defendant claims there is no substantial evidence of “solid value” tying him to the
burglary of the Castle. He asserts that Sharon Dalton’s in-court identification of him as
the burglar she confronted was fatally undermined by her identification of another person
as the burglar in the photographic lineup. Defendant notes the prosecutor, during closing
argument, referred to Dalton’s identification testimony as having no value. He further
argues that Dykes’s testimony does not tie defendant to burglarizing the Castle, as Dykes
never testified that defendant told him he committed the Castle burglary. He claims
Dykes had an incentive to identify defendant as the sole source of the stolen jewelry in
his possession. Noting that the Castle was burglarized on February 10, defendant was
arrested on February 16, and Dalton’s necklace was found at Dykes’s home on February
22, defendant finds there was a six-day period during which defendant could have
received the necklace from whoever actually burglarized the Castle and then passed it
onto Dykes.
       Defendant’s attacks on the credibility of Sharon Dalton’s identification and
Dykes’s testimony asks us to reweigh the credibility of their testimony, which we cannot
do on appeal. Likewise, accepting his rather elaborate scenario explaining how Dykes
got the necklace taken from the Castle from defendant would have us view the evidence
in the light least favorable to the judgment.

                                                6
       Sharon Dalton identified defendant as the man who burglarized her residence. Her
identification of another person in a photographic lineup did not render this testimony
impossible or inherently improbable; accordingly, it is substantial evidence supporting
his conviction. (People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259.) Dykes’s
testimony that defendant committed multiple burglaries and gave him the necklace taken
in the burglary is further substantial evidence supporting the judgment of conviction in
count two. Finally, defendant’s confession that he committed 12 residential burglaries in
the area and during the time the Castle burglary was committed is additional evidence
supporting his conviction.
                                              II
       Defendant contends the trial court committed prejudicial error in allowing the
prosecution to introduce his admission to committing 12 burglaries in the area. He
argues that the admission was admissible only as uncharged crimes evidence pursuant to
Evidence Code section 1101. He claims the statement was admissible as uncharged
crimes evidence only to prove identity with respect to the Castle burglary in count two,
and identity requires the greatest similarity between the uncharged and charged offenses.
Asserting the inference of identity was weak because defendant’s statement does not
specifically admit to the Castle burglary, he finds the statement was insufficiently
relevant to be admitted as uncharged crimes evidence. Defendant concludes that the
alleged error requires reversal in light of the inherently prejudicial nature of his admitting
to 12 burglaries and its limited probative value.
       At the Evidence Code section 402 hearing on defendant’s statement, the
interrogating officer testified that defendant was suspected of being involved in more
than 20 unsolved burglaries in an area bordered by Cirby Way, Sunrise
Avenue/Boulevard and Old Auburn Road. Defendant admitted committing 12 residential
burglaries in the area between August 2010 and February 2011. Defendant did not



                                              7
provide any more specific information regarding the burglaries. The officer thought
defendant gave vague responses because of his drug use.
       Arguing against admitting the statement, defense counsel told the trial court
defendant’s statement admitting to 12 burglaries in the area, “creates minimal probative
value because there are no specifics in this particular case. There was no reference to
specific addresses, specific facts, specific dates, items that were taken. So, I believe in
that sense, to the extent it has relevance, it is extremely minimal.”
       In rejecting defendant’s contention, the trial court ruled as follows: “Well, I find it
does have relevance because if [defendant’s] saying that he didn’t commit this one
particular burglary, he’s admitting he committed more than the two he’s admitting to; in
this statement he admits he committed more than those two in the same area during the
same time frame. So, that makes it relevant.” The trial court then asked defense counsel
for his arguments regarding prejudice; counsel asserted admitting the statement would
effectively preclude defendant from testifying by inquiring into the uncharged burglaries
on cross-examination, forcing defendant to assert his Fifth Amendment privilege. The
prosecutor agreed that any cross-examination of defendant would be limited to the
charged offenses. The following day, the trial court ruled the high probative value of the
statement was not outweighed by any undue prejudice pursuant to Evidence Code section
352, and accordingly admitted it.
       Evidence Code section 1101 was never mentioned; the trial court ruled the
evidence was admissible to show he admitted committing the count two burglary, and the
prosecutor was precluded from asking defendant about uncharged burglaries on cross-
examination. Contrary to the premise of defendant’s contention, it is clear that the
statement was admitted as an admission that he committed the burglary in count two
rather than as uncharged crimes evidence under Evidence Code section 1101.
       The trial court’s decision to admit the statement on this ground was correct. It
properly observed that the statement was highly relevant. Unlike the other two charged

                                              8
crimes, defendant did not specifically confess to this burglary. By confessing to 12
residential burglaries in the same area and during the time in which the count two
burglary was committed, defendant’s statement raises the strong inference that the
burglary in count two was one of those 12 burglaries.
       Nor was the statement too prejudicial to admit. “ ‘The “prejudice” referred to in
Evidence Code section 352 applies to evidence which uniquely tends to evoke an
emotional bias against defendant as an individual and which has very little effect on the
issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” ’
[Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 320.) Where, as here, defendant
already confessed to committing the two other charged burglaries and his statement that
he committed a total of 12 burglaries in the area is not unduly prejudicial.
       Applying the deferential standard of review to Evidence Code section 352 rulings
(People v. Hernandez (2011) 200 Cal.App.4th 953, 966 [trial court’s Evidence Code
section ruling not disturbed on appeal absent “ ‘ “ ‘a showing that the court exercised its
discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest
miscarriage of justice’ ” ’ ”], we conclude the decision to admit the statement was not an
abuse of discretion.
                                             III
       Defendant contends the trial court erred in failing to grant his request to give the
general limiting instruction, CALCRIM No. 303, regarding his statement admitting to
committing 12 burglaries. He argues that if the statement was admissible, “it was only
for the limited purpose of proving identity under Evidence Code section 1101(b)” and he
was therefore entitled to an appropriate limiting instruction.
       As with his claim regarding the admissibility of the statement, defendant’s
contention here fails because it erroneously assumes could be admitted only as uncharged
misconduct evidence. This is wrong and this claim therefore fails.



                                              9
                                  DISPOSITION
     The judgment is affirmed.



                                                NICHOLSON   , J.



We concur:



     RAYE               , P. J.



     HULL               , J.




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