Filed 3/4/15 P. v. Dominguez 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067897
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. CRM026674A)
                   v.

JASON KEITH DOMINGUEZ,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced County. Marc A.
Garcia, Judge.
         Jake Stebner, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California for Plaintiff and
Respondent.
                                                        -ooOoo-



*        Before Gomes, Acting P.J., Kane, J. and Smith, J.
          A jury convicted appellant, Jason Keith Dominguez, of second degree burglary
(count 1/Pen. Code, § 460, subd. (b)) and possession of drug paraphernalia
(count 2/Health & Saf. Code, § 11364.1, subd. (a)). In a separate proceeding the court
found true a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) Following
independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we
affirm.
                       FACTUAL AND PROCEDURAL HISTORY
          In the early morning of February 27, 2013, two men threw a cinder block through
a glass door of a Pep Boys store in Merced and stole stereo equipment and gloves.
Shortly after the robbery, at approximately 1:30 a.m., Merced Police Officer William
McComb responded to a call at the store. After clearing the building with other officers
who arrived on the scene, a man informed McComb that the suspects who broke into the
store were last seen going into room 112 at the Siesta Motel.
          Sidney Hamilton and Cathy Ryan lived at the Siesta Motel in room 112. Shortly
after the burglary at Pep Boys, Dominguez and Rudy Garibaldi arrived at the room
carrying stereo equipment and asking for Hamilton. Upon entering the room, Garibaldi
began taking his clothes off and Dominguez sat down next to Hamilton. Three to six
minutes after their arrival, Officer McCombs and another officer arrived at the room and
knocked on the door. Hamilton answered the door and allowed the officers inside the
room. Officer McCombs noticed that Garibaldi was wearing a brand new pair of gloves
and that the room contained stereo equipment that could have been stolen from Pep Boys.
The officers detained Garibaldi and removed him from the room. While speaking with
Dominguez, Officer McCombs noticed that he was fidgeting with his hands inside a
plastic crate that he was sitting on. McComb asked Dominguez what he had in his hands
and Dominguez showed him a type of pipe that is commonly used to smoke
methamphetamine, which the officer confiscated. Additionally, a bag containing clothes



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that appeared to match the clothing worn by the two suspects in the Pep Boys
surveillance video was found on the ground between Dominguez’s legs.
       On April 3, 2013, the district attorney filed an information charging Dominguez
with the two charges he was convicted of and the prior prison term enhancement found
true by the trial court.
       On May 30, 2013, a jury found Dominguez guilty of the two substantive offenses
and the court found true the prior prison term enhancement.
       On August 12, 2013, the court sentenced Dominguez to an aggregate three-year
prison term; a two-year term on his burglary conviction, a concurrent 90-day term on his
possession of drug paraphernalia conviction, and a one-year prior prison term
enhancement.
       Dominguez’s appellate counsel has filed a brief which summarizes the facts, with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende (1979) 25 Cal.3d 436.) However, in a document filed in
response to our invitation to submit additional briefing, Dominguez contends: 1) the
transcript of a recorded interview between Garibaldi and a district attorney investigator
that was played for the jury is different from the recorded version of the interview that
was played for the jury; 2) Ryan and Hamilton were promised that they would be
released from custody in exchange for their testimony; 3) Garibaldi testified that he took
an amplifier off the shelf and the surveillance video showed that the burglar who threw
the cinder block through the glass door was the only one who took boxes off store
shelves; 4) Dominguez was arrested wearing a black jacket and he did not match the
description of either suspect; 5) the clothing found in the trash bag located between
Dominguez’s legs did not match anything the burglars wore; 6) an officer’s testimony
during the preliminary hearing indicated that the time on the video did not match “the
time on the alarm call” which means that the video was altered; 7) in his testimony before
the jury, the store manager implicated Dominguez in another burglary; 8) Dominguez’s

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defense counsel was not assigned the case until a week before trial and she received it
from an attorney who failed to get any evidence from the prosecution because he
assumed Dominguez was going to accept a plea bargain. We will reject these
contentions.
       The audio and video recordings that were played for the jury are not part of the
appellate record. Thus, contention Nos. 1 and 3 are not properly before this court
because they rely on facts outside the record. (People v. Barnett (1998) 17 Cal.4th 1044,
1183 [“review on a direct appeal is limited to the appellate record”].) Similarly,
contention No. 8 is also not properly before us because it too relies on facts outside the
appellate record.
       Further, contention Nos. 4, 5, and 6, in effect challenge the sufficiency of the
evidence. “When an appellant challenges the sufficiency of the evidence to support a
conviction, the appellate court reviews the entire record to see ‘“whether it contains
substantial evidence—i.e., evidence that is credible and of solid value—from which a
rational trier of fact could have found the defendant guilty beyond a reasonable doubt.”’
[Citation.] We view the facts in the light most favorable to the judgment, drawing all
reasonable inferences in its support. [Citations.] We do not reweigh the evidence,
resolve conflicts in the evidence, or reevaluate the credibility of witnesses. [Citations.]
The test on appeal is not whether we believe the evidence established the defendant’s
guilt beyond a reasonable doubt, but whether ‘“‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’”’” (People v.
Cochran (2002) 103 Cal.App. 4th 8, 12-13.)
       “While mere unexplained possession of stolen property is not alone sufficient to
justify conviction of burglary [citations], it is well established that the possession of
recently stolen property is incriminating and in such circumstances there need be only
slight corroboration tending to show a defendant’s guilt to warrant conviction [citations.]
In this connection, the failure of the defendant to establish that he had honestly obtained

                                              4.
the property in question is itself a strong circumstance tending to prove his guilt.”
(People v. Harris (1968) 266 Cal.App. 2d 426, 427-428.)
       The evidence at trial established that within an hour of the burglary at Pep Boys,
Dominguez and Garibaldi were found in possession of stereo equipment that had been
stolen from the store. Further, Dominguez did not provide any explanation for his
possession of the stereo equipment and although during his trial testimony Garibaldi
denied identifying Dominguez as the second burglar, during an interview with a district
attorney investigator Garibaldi admitted that he committed the burglary with Dominguez.
The jury could reasonably have found Dominguez guilty of burglary based on these
circumstances alone. Accordingly, we reject Dominguez’s challenges to the sufficiency
of the evidence.
       Further, the record does not support Dominguez’s contentions that Hamilton and
Ryan were promised release from custody in exchange for their testimony or that the
store manager implicated him in another burglary at the store. Hamilton and Ryan were
subpoenaed to testify and failed to appear. During the trial both were in custody because
of the previous failures to appear and after they testified the defense counsel asked that
they be subject to recall. In order to ensure their appearance in the event they were
recalled, the court did not release them until the jury began deliberating the case. Thus,
there is no merit to Dominguez’s contention that the court released Ryan and Hamilton
from custody in exchange for their testimony.
       Further, during the store manager’s testimony, when asked whether he had gone to
the Siesta Motel the night of the burglary, the manager responded “No, no. Actually
Mr. Dominguez’s name was previously mentioned -- [.]” However, he was not able to
finish his answer before defense counsel interposed an objection that the court sustained.
After the jury was removed from the courtroom, defense counsel moved for a mistrial
based on the court’s earlier ruling in limine that Dominguez’s name could not be
mentioned with respect to an attempted burglary at the Pep Boys store on February 13,

                                             5.
2013. The court, however, denied the motion because the only thing the jury heard was
the manager’s ambiguous statement that Dominguez’s name came up. Thus, there is no
merit to Dominguez’s remaining contention that the manager implicated him in another
burglary in front of the jury.
       Following an independent review of the record we find that no reasonably
arguable factual or legal issues exist.
                                          DISPOSITION
       The judgment is affirmed.




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