Filed 3/3/14 P. v. Reyes CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B244374

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA393164)
         v.

JUSTIN BRYAN REYES et al.,

         Defendants and Appellants.



         APPEAL from judgments of the Superior Court of Los Angeles County, Robert J.
Perry, Judge. Affirmed with directions.
         Jean Ballantine, under appointment by the Court of Appeal, for Defendant and
Appellant, Justin Bryan Reyes.
         Ann Bergen, under appointment by the Court of Appeal, for Defendant and
Appellant, Maria Garcia.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel and David A.
Voet, Deputy Attorneys General, for Plaintiff and Respondent.
       Appellant Maria Garcia was convicted of one count of first degree burglary in
violation of Penal Code1 section 459, one count of second degree burglary in violation of
section 459, and one count of grand theft in violation of section 487, subdivision (a).
Appellant Justin Reyes was convicted of the same three counts, and was also convicted of
one count of attempted first degree burglary in violation of sections 664 and 459, one
count of attempted petty theft in violation of sections 664 and 484, subdivision (a), and
one count of possession of burglar’s tools in violation of section 466. The trial court
imposed a sentence of four years and eight months on appellant Garcia and seven years
and six months on appellant Reyes. The court imposed various fines on both appellants.
       Appellants appeal from the judgment of conviction, contending there is
insufficient evidence to support their convictions for the second degree car burglary.
Appellant Reyes contends the trial court erred in imposing a separate sentence for his
conviction for possession of burglary tools and ordering him to serve a misdemeanor
sentence in prison. Appellant Garcia contends her trial counsel’s failure to request
CALCRIM No. 304 constituted ineffective assistance of counsel.2 We agree appellant
Reyes’ misdemeanor sentence must be served in county jail. We affirm the judgments of
conviction in all other respects.




       1
           All further statutory references are to the Penal Code unless otherwise specified.
       2
       Garcia has filed a petition for writ of habeas corpus on this same issue
(B249329), to be heard concurrently with this appeal.
                                               2
                                            FACTS
       a. Count 1 - first degree burglary
       On January 1, 2012, Silvana Cayax and her family returned to their home on St.
Andrews Place. As Cayax walked past the bathroom, she saw two “shapes or shadows”
inside. She closed the door, told her husband to call 911, then opened the door and
turned on the light. She saw appellants Reyes and Garcia in the bathroom. She
recognized them as friends of her son. They left through the bathroom window. Cayax
then discovered that her home had been ransacked and $20 was missing.


       b. Count 4 –attempted first degree residential burglary and attempted petty theft
       On January 21, 2012, at about 9:00 a.m., Kari Ann O’Donnell looked through the
window of her home on North Windsor Boulevard and saw appellant Reyes walking
through her backyard toward her neighbor’s home. Appellant Reyes returned and walked
toward the side door of O’Donnell’s home. She saw him trying to take a bicycle that was
locked to a balustrade. O’Donnell hit her hand against the window several times and
appellant Reyes left. O’Donnell called the police. O’Donnell’s neighbor, Edson Herrera,
later discovered that his bicycle had been taken from outside his home. Police returned it
to him later in the day on January 21.


       c. Counts 2 and 3 – second degree burglary and grand theft
       On January 21, 2012, at about 9:45 a.m., Los Angeles Police Department Officer
Christina Johnson and her partner Officer Wolfe responded to a call about a possible
burglary. They observed appellant Reyes walking on Windsor Boulevard, carrying a bag
of golf clubs in one hand and a bicycle in the other. Appellant Reyes was wearing black
gloves. He approached a residence, knocked, then left. The officers detained him, and
discovered that he had a screwdriver, knife and pliers in his pocket. These tools can be
used to commit burglaries.
       After appellant Reyes was detained, appellant Garcia approached the officers. She
said that appellant Reyes was her boyfriend and asked why the police had detained him.

                                              3
She then said that the golf clubs belonged to her friend Melissa, and that she and
appellant Reyes were looking for Melissa. The officers detained appellant Garcia. They
discovered that a purse she was carrying contained a bank statement and car registration
for Michael Simmons, and what appeared to be Simmons’ iPhone/iPod.
         Officer Johnson contacted Simmons, who lived on Windsor Place. Simmons
identified the iPhone/iPod, golf clubs, and documents from appellant Garcia’s purse as
his.3 These items were in his Toyota 4-Runner when he parked and locked it the previous
night. The Toyota’s parking place was about 100 yards from where appellants were
arrested. Simmons did not give anyone permission to enter his truck or take any of the
items.


         d. Defense
         Both appellants offered an alibi defense to the Cayax burglary charge. Appellant
Reyes’ mother testified that both appellants were with her at a family New Year’s Eve
party from 10:00 p.m. to 3:00 a.m. Appellant Reyes’ cousin Carlos Montufar testified
that both appellants were at the party from 10:00 p.m. to 3:00 a.m. Appellant Reyes did
not leave the party during that time. Cayax’s house was about five minutes away from
the party’s location.
         Appellant Garcia’s mother, Dora Menendez, testified that Garcia lived with
appellant Reyes and his family, and if Reyes left the house, Garcia would go looking for
him.


                                        DISCUSSION
         1. Sufficiency of the evidence – car burglary
         Appellants contend there is insufficient evidence to support their conviction for
car burglary because the People’s case against them consisted only of their possession of

         3
        The golf clubs were worth about $3000 and the iPhone/iPod between $300 and
$400. A pair of tennis shoes worth about $300 were recovered in the area, and were also
determined to have been taken from Simmons’ Toyota.
                                               4
stolen property and their commission of a residential burglary three weeks earlier, and
that such a conviction violates their state and federal constitutional rights to due process
and a fair trial. They argue that a conviction for car burglary requires there to be
corroborating evidence connecting the defendant to entry into the car or placing the
defendant at the scene of the crime at or around the time the crime took place. There is
sufficient evidence to support appellants’ conviction.
       “‘In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence and to special circumstance allegations.
[Citation.] [I]f the circumstances reasonably justify the jury's findings, the judgment may
not be reversed simply because the circumstances might also reasonably be reconciled
with a contrary finding. [Citation.] We do not reweigh evidence or reevaluate a witness's
credibility. [Citations.]’” (People v. Nelson (2011) 51 Cal.4th 198, 210 [internal
quotation marks omitted].)
       “When . . . a defendant is found in possession of property stolen in a burglary
shortly after the burglary occurred, the corroborating evidence of the defendant's acts,
conduct, or declarations tending to show his guilt need only be slight to sustain the
burglary convictions. [Citations.]” (People v. Mendoza (2000) 24 Cal.4th 130, 176.)
There is no bright line rule as to what time interval is covered by the phrases “shortly
after” or “recently stolen.” (See People v. Anderson (1989) 210 Cal.App.3d 414, 421.) It
is well established, however, that a period of a day or less constitutes “shortly after the
burglary.” (See, e.g. People v. Hallman (1973) 35 Cal.App.3d 638, 640 [within 25
hours]; People v. Clark (1953) 122 Cal.App.2d 342, 345 [about 12 hours], overruled in
part by People v. Najera (2008) 43 Cal.4th 1132, 1141; People v. Conrad (1954) 125

                                              5
Cal.App.2d 184, 185 [following day]; People v. Owens (1947) 79 Cal.App.2d 290, 295
[morning after burglary discovered]; People v. Smith (1950) 98 Cal.App.2d 723, 724 [14
hours], overruled in part by People v. Najera, supra, at p. 1141.)4
       Examples of corroborating evidence include “‘(1) ‘the attributes of possession-
time, place and manner’; (2) ‘that the defendant had the opportunity to commit the crime
charged’; (3) ‘the defendant's conduct’; (4) ‘his false or contradictory statements, if any’;
(5) ‘other statements he may have made with reference to the property’; (6) ‘a false
account of how he acquired possession of the stolen property’; and (7) ‘any other
evidence which tends to connect the defendant with the crime charged.’” (People v.
Mendoza, supra, 24 Cal.4th at p.176 [quoting CALJIC No. 2.15].)
       Here, the evidence shows appellant Reyes was found near the scene of the
burglary in possession of recently stolen golf clubs. The burglarized car was parked in
the 600 block of Windsor Boulevard. Appellant Reyes was detained by police on that
same block. The golf clubs were inside Simmons’ Toyota when it was parked on the
evening of January 20. Appellant Reyes was detained about 9:45 a.m. on January 21. He
was on foot, carrying the stolen golf clubs, facts which suggest he had very recently
acquired the golf clubs. Thus, the attributes of possession are corroborating evidence.
       When a patrol car arrived in the area, appellant Reyes went up to a residence,
knocked on the door, and then walked away for no apparent reason. This behavior could
reasonably be understood as an attempt to avoid detection by the police, and thus to show
consciousness of guilt. (See People v. Pensinger (1991) 52 Cal.3d 1210, 1243-1245
[flight from police can indicate consciousness of guilt]; People v. Bradford (1997) 14
Cal.4th 1005, 1054-1055 [flight does not require the physical act of running away from
the crime scene; all it requires is that the defendant intended to avoid being seen or
arrested].) Appellant Reyes offered no explanation for his possession of the golf clubs,


       4
        Even longer periods have been found to be “shortly after” the theft. (See, e.g.,
People v. Citrino (1956) 46 Cal.2d 284, 286 [within a few days]; People v. Midkiff (1968)
262 Cal.App.2d 734, 741 [ten days]; People v. Reynolds (1957) 149 Cal.App.2d 290, 295
[six days].)
                                              6
another circumstance which can show consciousness of guilt. (People v. Holley (1961)
194 Cal.App.2d 538, 540-541 [“When property which was stolen in a burglary is found
in the possession of a person soon after the theft and such person is unable or unwilling to
truthfully account for the manner in which he acquired the possession of such property
the possession and guilty conduct are presumptive evidence that such person obtained the
property burglariously.”].) Appellant Reyes did not contradict appellant Garcia’s false
claim that the golf clubs belonged to a friend and Reyes was seeking to return them to
her, yet another circumstance which can show consciousness of guilt. (See People v.
Citrino, supra, 46 Cal.2d at p. 288-289 [false statements about the source of property
tend to show consciousness of guilt and constitute valid corroborating evidence]; People
v. Green (1995) 34 Cal.App.4th 165, 180-181 [“Where recently stolen property is found
in the conscious possession of a defendant who, upon being questioned by the police,
gives a false explanation regarding his possession or remains silent under circumstances
indicating consciousness of guilt, an inference of guilt is permissible.”].) Thus, appellant
Reyes’ conduct and silence, which indicated consciousness of guilt, were corroborating
evidence.
       There is similar corroborating evidence for appellant Garcia. When police
detained her, she was carrying a purse which contained Simmons’ iPhone/iPod, bank
statement and car registration. Appellant Garcia was also detained within a block of the
burglarized car, the morning after the car was parked and locked by its owner. Thus, the
attributes of her possession were corroborating evidence. She offered police the false
statement that the golf clubs belonged to her friend Melissa, showing consciousness of
guilt and providing further corroborating evidence.
       Since we have determined that “a rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt, the due process clause
of the United States Constitution is satisfied [citation] as is the due process clause of
article I, section 15 of the California Constitution.” (People v. Osband (1996) 13
Cal.4th 622, 690.)


                                              7
       2. CALCRIM No. 304
       The court admitted evidence that appellant Reyes stole a bicycle belonging to
Edson Herrera, an uncharged crime, and instructed the jury with CALCRIM No. 375
limiting the use of this evidence. Appellant Garcia contends her counsel was ineffective
in failing request that the jury also be instructed with CALCRIM No. 304 concerning the
uncharged crimes evidence. She argues that absent CALCRIM No. 304, CALCRIM No.
375 was misleading, and deprived her of her constitutional right to have a jury determine
every material issue presented by the evidence, resulting in a violation of due process.
       An appellant has the burden of proving ineffective assistance of counsel. (People
v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must
show that his counsel's performance fell below an objective standard of reasonableness,
and that, but for counsel's error, a different result would have been reasonably probable.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987)
43 Cal.3d 171, 216-218.) “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at
p. 694.) In the absence of prejudice, the reviewing court may reject the claim of
ineffective assistance of counsel without reaching the issue of deficient performance. (Id.
at p. 697; see In re Fields (1990) 51 Cal.3d 1063, 1079.)
       CALCRIM No. 375, as given, stated: “The People presented evidence that
defendant Reyes committed the petty theft of a bicycle belonging to [Edson] Herrera that
was not charged in this case. [¶] You may consider this evidence only if the People have
proved by a preponderance of the evidence that the defendant in fact committed this
uncharged offense. Proof by a preponderance of the evidence is a different burden of
proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the
evidence if you conclude that it is more likely than not that the fact is true. [¶] If the
People have not met this burden, you must disregard this evidence entirely. [¶] If you
decide that the defendant committed the petty theft of [Edson] Herrera’s bicycle, you
may, but are not required to, consider that evidence for the limited purpose of deciding
whether or not: [¶] The defendant was the person who committed the offenses charged

                                              8
in Counts 2, 3, 4 and 6; or [¶] The defendant acted with the intent and motive to commit
the acts charged in Counts 2, 3, 4 and 6. [¶] . . . [¶] Do not consider this evidence for
any other purpose.”
       Appellant Garcia contends that CALCRIM No. 375 did not clearly state that it
applied only to appellant Reyes. She points out that it refers to Reyes by name only once,
but uses the term “defendant” seven times. She argues that this ambiguity was
exacerbated by CALCRIM No 203, which told the jury: “You must separately consider
the evidence as it applies to each defendant. You must decide each charge for each
defendant separately. . . . [¶] Unless I tell you otherwise, all instructions apply to each
defendant.” Appellant Garcia claims the instructions together “could easily have
confused” the jury as to whether the uncharged bicycle crime could be used against
Garcia.
       Appellant Garcia claims the confusion could have been remedied by CALCRIM
No. 304, which provides: “I instructed you during the trial that certain evidence was
admitted only against [a] certain defendant[s]. You must not consider that evidence
against any other defendant. (CALCRIM No. 304.)
       We do not agree that CALCRIM No. 375, alone or with the other instructions, was
in any way ambiguous. The first sentence clearly states that the evidence involved
“defendant Reyes.” Subsequent references to “the defendant” can only be understood as
referring to Reyes.5 If anything, CALCRIM No. 203 reinforces this understanding. It
begins by telling the jury to separately consider the evidence as it applies to each
defendant, thus clearly indicating that not all evidence applied to both defendants.
Similarly, by instructing the jury that all instructions apply to both defendants unless the
court instructed otherwise, CALCRIM No. 203 alerted the jury to the possibility that
some instructions might apply to only one of the defendants. Thus, there was no
reasonable likelihood that the jury misconstrued or misapplied the terms of CALCRIM

       5
         The instruction also told the jury that it could use the evidence to decide whether
“[t]he defendant was the person who committed the crimes charged in Counts 2, 3, 4 and
6.” Only Reyes was charged in all four of those counts.
                                              9
No. 375. (See People v. Thornton (2007) 41 Cal.4th 391, 436 [reviewing court
determines whether there is a reasonable likelihood jury misapplied or misconstrued
challenged instruction]; see also Middleton v. McNeil (2004) 541 U.S. 433, 437.)
       Since CALCRIM No. 304 was not needed to clarify CALCRIM No. 375,
appellant Garcia has not shown prejudice from her counsel’s failure to request
CALCRIM No. 304. Further, the evidence against appellant Garcia was very strong. As
we discuss in section 2, appellant Garcia was found in possession of some Simmons’
recently stolen property when she was detained by police about 100 yards from
Simmons’ Toyota. Appellant Reyes had more of Simmons’ recently stolen property.
Appellant Garcia made a false statement about the ownership of the stolen golf clubs.
Thus, there is no reasonable probability that appellant Garcia would have received a more
favorable verdict if the jury had been instructed with CALCRIM No. 304.


       3. Appellant Reyes’s misdemeanor sentence for possession of burglary tools
       Appellant Reyes contends the trial court erred in failing to stay his conviction
pursuant to section 654. He contends the evidence showed that he possessed the
burglar’s tools with the intent to use them to break into the Toyota and steal its contents,
and so he did not have separate and independent intents for the two crimes. He concludes
the court erred in failing to stay the burglar’s tools conviction under section 654. We see
no error.
       Section 654 bars multiple punishments for convictions arising out of an indivisible
course of conduct committed pursuant to a single criminal intent or objective. (People v.
Hester (2000) 22 Cal.4th 290, 294.) Section 654 does not bar multiple punishment for
multiple objectives in an indivisible course of conduct. (People v. Garcia (2008) 167
Cal.App.4th 1550, 1564.)
       “‘Whether a course of criminal conduct is divisible and therefore gives rise to
more than one act within the meaning of section 654 depends on the intent and objective
of the actor . . . .’ [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951-952.) “[I]f
all of the offenses were merely incidental to, or were the means of accomplishing or

                                             10
facilitating one objective, defendant may be found to have harbored a single intent and
therefore may be punished only once. [Citation.]” (People v. Harrison (1989) 48 Cal.3d
321, 335.)
       The issue of whether a defendant harbored a single or multiple objectives during a
course of criminal conduct is a factual question for the trial court. (People v. Coleman
(1989) 48 Cal.3d 112, 162.) We review this determination for substantial evidence, and
presume in support of the court’s conclusion the existence of every fact the court could
reasonably have deduced from the evidence. (People v. Jones (2002) 103 Cal.App.4th
1139, 1143.)
       Here, it is reasonable to infer from the evidence that appellant Reyes did not use
the burglar’s tools to obtain entry to Simmons’ Toyota. The Toyota showed no signs of
damage from a forced entry. Expert testimony indicated that the tools found in appellant
Reyes’ possession almost always cause damage to a vehicle when used to force entry, but
other tools, such as a “slim jim” could be used to unlock a vehicle without causing
damage. It was much more likely that appellant Reyes used tools other than the ones
found in his possession to enter the Toyota. Thus, it is reasonable to infer that appellant
Reyes intended to use the burglar’s tools for other crimes. This is substantial evidence to
support the trial court’s finding of separate intents.
       4. Misdemeanor sentence
       In the alternative, appellant Reyes contends the trial court erred in failing to order
that his misdemeanor sentence for possession of burglary tools be served in county jail.
Respondent agrees the sentence must be served in county jail, but contends the trial court
erred in sentencing appellant Reyes to only two months for the conviction.
       The parties are correct that appellant Reyes’ misdemeanor sentence must be
served in county jail. “[M]isdemeanor terms, unless imposed concurrently with a felony
term, are served in local detention facilities and are not part of a continuous period of
imprisonment under the supervision of the same correctional officials.” (In re Eric J.
(1979) 25 Cal.3d 522, 537; In re Kindred (1981) 117 Cal.App.3d 165, 168.)


                                              11
       Respondent claims the trial court erred in sentencing appellant Reyes to only two
months for the misdemeanor rather than a full six months. The court stated: “And so for
count 6, the misdemeanor, one-third of the sentence of six months, an additional 2
months is imposed.” Respondent points out that section 1170.1 limits consecutive terms
for felony convictions to one-third of the middle determinate term, but has no application
to misdemeanor sentences. Respondent contends the trial court must have erroneously
believed section 1170.1 applied to misdemeanors.
       Respondent did not object to this sentence in the trial court and so has forfeited its
claim. Under section 19, appellant Reyes’ offense was punishable by a term “not
exceeding six months.” Thus, the two month term imposed in this case was a legally
authorized term. At most, the trial court’s decision to sentence Reyes to two months
rather than six months was a failure to properly make a discretionary sentencing choice.
(People v. Scott (1994) 9 Cal.4th 331, 353-354 [waiver doctrine applies to “claims
involving the trial court’s failure to properly make or articulate its discretionary
sentencing choices”; waiver doctrine does not apply to claims of “unauthorized”
sentences, which are sentences that “could not lawfully be imposed under any
circumstance in the particular case.”].)6


                                       DISPOSITION
       Appellant Reyes’s two month term for his conviction of possession of burglar’s
tools (count 7) is to be served in county jail at the conclusion of his state prison term. His
state prison term is corrected from seven years, six months in state prison to seven years,
four months in state prison plus two months in county jail. The judgments of conviction
are affirmed in all other respects.




       6
        Further, as Reyes points out, when a sentence is legally authorized, it cannot be
increased on remand after a successful or partially successful appeal. (People v. Collins
(1978) 21 Cal.3d 208, 216.)

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                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                    MINK, J.*



We concur:




      TURNER, P. J.



      KRIEGLER, J.




      *
        Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
                                          13
