Filed 9/28/16 P. v. Martin CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO

THE PEOPLE,                                                          B264129

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA416427)
         v.

DARRIN SAN MARTIN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Kathleen Kennedy, Judge. Affirmed.


         Jennifer Zide, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Robert
C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
       Appellant Darrin San Martin (defendant) appeals from a judgment entered after
his conviction by jury of one count of burglary in violation of Penal Code section 459. 1
We affirm the judgment.
                                     CONTENTIONS
       Defendant argues that the trial court erred in allowing evidence of a prior
conviction for burglary be used for impeachment purposes, and by denying his motion for
dismissal based on insufficiency of the evidence.
                              FACTUAL BACKGROUND
       At approximately 2:00 a.m. on September 18, 2013, officers responded to an alarm
which had been triggered at Acme Display and Fixtures Company (Acme), located at
1043, 1055 and 1057 South Olive Street in Los Angeles. Acme occupies the three
interconnected buildings at those addresses. Mitchell Blumenfeld, the vice president of
Acme, was told by the alarm company and the Los Angeles Police Department that a
burglar alarm had sounded at the business. He arrived at the scene between 3:00 and
3:30 a.m.
       Extensive damage had been done to the property, including a hole in the ceiling
and the roof. The breach to the roof was in the middle building, at 1055 South Olive
Street. The roof had been pried open. Wigs and mannequins were missing from the
showroom, where there was additional damage, including broken glass, debris from the
ceiling, and broken mannequins. A pry bar was holding the hole in the roof open. Some
of the damaged mannequins were found on the roof.
       Acme’s interior security camera was not aimed either at the location of the
damage or entry point. The exterior camera was in the alley behind the business,
pointing north along the west side of the business. The video from that camera showed a
person in the alley at 2:30 to 3:00 a.m.
       K-9 officer Nhut Huynh and his dog responded to the scene, along with another
K-9 officer, Cliff Chu. Officers set up a containment around the area, with over one


1      All further statutory references are to the Penal Code unless otherwise noted.

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dozen officers present. No one escaped the containment perimeter after it was
established. Officer Chu used his dog to search the interior of the building after having
announced their presence and having issued a command to surrender. There was no
response.
       A police car in the alley behind the business and a police car in front of the
building on Olive Street also made “call out” demands over their amplified loud speakers
for any suspects to come out.
       Officer Huynh made his way through a hole in the ceiling which led to the attic
space. Inside the attic space there was a duffel bag with tools and mannequin parts.
Another hole led to the roof. Officers Huynh and Schwab went through the hole onto the
roof. Officer Huynh’s uniform was covered in dust and debris from the damaged ceiling.
Scanning the roof area, Officer Huynh saw an individual lying under a raised air
conditioning unit. The suspect was sweaty and had dust, similar to the dust that Officer
Huynh and Officer Schwab had all over them, on his clothing.
       Officer Schwab commanded the person to step out. He had to yell several times
before the individual responded. Officer Huynh got a good look at the man, whom he
identified as the defendant. There was no one else on the roof.
       The security camera video of the alley showed a man in dark clothes in the alley.
Defendant was wearing dark grey sweat pants and a dark shirt or sweatshirt. The
sweatshirt worn by defendant when he was arrested had red letters on it. Officer Gabriel
Lobato testified that he did not recall seeing red letters on the shirt of the person he
observed in the security camera video.
       It is not standard police procedure to search for fingerprints on every piece of
evidence collected. No fingerprint or DNA evidence was recovered here.
       Defendant and his wife, Ishega San Martin (Mrs. San Martin), testified for the
defense that they were working at their store in Inglewood on the evening of September
17, 2013. Defendant had been doing some drywall work in the shop. They left the shop
around 11:00 p.m. and drove home to collect defendant’s daughter’s bag and drive her
home to Riverside. Along the way the couple got into an argument. Defendant pulled


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the car over in downtown Los Angeles and got out in order to cool off. Defendant’s wife
testified that this is what defendant often does when they get into an argument. She could
not recall the subject of their argument.
       Defendant’s wife moved into the driver’s seat and then drove defendant’s daughter
to her home. It took a half hour or longer to get to Riverside from downtown
Los Angeles. Mrs. San Martin made no attempt to contact defendant before learning of
his arrest.
       Defendant testified that after he got out of the car, he was robbed at knifepoint by
two individuals who took his wallet, watch, cell phone, and shoes. As it was between
12:15 and 12:30 a.m., and no businesses were open or available for help, he decided to
seek refuge on a nearby building on Olive Street. Defendant climbed up a pipe so he
could “hunker down” for the night without harm coming to him. The pipe was at the
corner of the building adjacent to the parking lot. Five feet from that corner of the
building was a raised air conditioning unit. Defendant fell asleep under the air
conditioning unit. He was there when the officers found him.
       Defendant was awakened by two police officers yelling at him and shining their
lights on him. One officer shot defendant with a taser, but he was not shocked because
only one electrode hit him. Defendant was then dragged out from under the air
conditioner to somewhere on the roof where he was handcuffed and taken down a ladder.
Prior to being awakened by the officers, defendant heard nothing. There was an active
construction site nearby, and although defendant heard the construction noise, he made
no attempt to contact the workers at that site for help.
       Defendant did not tell the police officers who woke him that he had been robbed
and was seeking refuge on the roof. He made no comment to the police.
       Defendant admitted his 2000 burglary conviction. He had pleaded guilty to the
charge. Defendant explained he had no problem saying he did something and “fessing up
to the consequences.”
                               PROCEDURAL HISTORY
       Defendant was charged with burglary in violation of section 459.


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       Defendant was found guilty as charged following a jury trial, and was thereafter
sentenced to two years in county jail, with one year of the sentence suspended and the
second year to be formal probation.
       On May 6, 2015, defendant appealed the judgment.
                                       DISCUSSION
I. Prior burglary conviction
       Defendant contends that the trial court erred in allowing the use of a prior burglary
conviction for the purpose of impeachment. Defendant had seven prior felony
convictions for similar crimes. The prosecution sought to use all eight convictions. The
court excluded the seven oldest convictions as being too remote, however, the court
allowed a 2000 burglary conviction for which defendant received a five-year prison
sentence. The court declined to “sanitize” the prior conviction as referring to it simply as
a felony conviction, stating, “We don’t have to go into the details of it. It is a burglary.”
During defendant’s direct testimony at trial he admitted his prior conviction for burglary.
       A. Applicable law and standard of review
       A trial court’s decision admitting or excluding evidence is reviewed for abuse of
discretion. Under this standard, the ruling will not be disturbed “except on a showing the
trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999)
20 Cal.4th 1, 9-10.) Prejudicial error must be affirmatively demonstrated and will not be
presumed. (People v. Watson (1956) 46 Cal.2d 818, 836.)
       In exercising its discretion to admit a prior conviction for impeachment purposes,
the trial court may consider: (1) the extent to which the prior conviction reflects
adversely on an individual’s honesty or veracity; (2) the nearness or remoteness in time
of the prior conviction; (3) the similarity of the prior conviction to the charged offense;
and (4) the likelihood the defendant will not testify out of fear of being prejudiced
because of impeachment by the prior conviction. (See People v. Mendoza (2000) 78
Cal.App.4th 918, 925.)



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       Admission of a prior conviction is subject to the balancing test found in Evidence
Code section 352. (People v. Clark (2011) 52 Cal.4th 856, 931, citing People v. Wheeler
(1992) 4 Cal.4th 284, 296.) Under Evidence Code section 352, the court must consider
whether the evidence might involve undue time, confusion, or prejudice which outweighs
its probative value. (Wheeler, at pp. 296-297.)
       B. No abuse of discretion occurred
       At trial, the prosecutor argued that all eight similar prior convictions should be
admitted, as they showed a pattern of behavior reflecting on defendant’s honesty and
veracity. The trial court excluded seven of the eight felonies as being too remote.
However, the court balanced the high number of offenses and sustained showing of
dishonesty with an apparent gap in time and possible prejudice, by allowing only the
most recent offense to be presented. In addition, the court allowed only the fact of the
prior admission and the name of the crime to be admitted. No factual similarities
between the prior crime and the current crime were revealed. The court’s decision was
well within its discretion.
       In order to guard against the jury’s improper use of the evidence of the prior
conviction, the trial court instructed the jury that if it found a witness had been convicted
of a felony, it:
               “may consider that fact only in evaluating the credibility of the
       witness’[s] testimony. The fact of a conviction does not necessarily destroy
       or impair a witness’[s] credibility. It is up to you to decide the weight of
       that fact and whether that fact makes the witness less believable.”

       We must presume that the jury followed the trial court’s instructions. (People v.
Fuiava (2012) 53 Cal.4th 622, 669.)
       Defendant argues that the trial court improperly balanced the relevant factors.
Defendant asserts that a proper balancing of the factors necessary to protect a defendant’s
right to a fair trial was reflected in the outcome of People v. Almarez (1985) 168
Cal.App.3d 262, 268.) In Almarez, the trial court admitted two prior convictions in a
burglary matter because it did not believe it had the authority to exclude them under


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Proposition 8. As a result of that ruling, the defendant did not testify. The Court of
Appeal reversed, noting that one of the crimes was identical to the crime charged, and the
other was a 13-year-old crime that may have been considered too remote. (Id. at p. 268.)
Because the defendant did not testify, the error was reversible per se. (Ibid.) The case is
inapplicable. Here, the trial court properly exercised its discretion, weighing the relevant
factors and ruling seven priors inadmissible. Only one prior was determined to be
admissible for impeachment purposes.
       Defendant also relies on People v. Burns (1987) 189 Cal.App.3d 734 (Burns).
Burns is similar to Almarez in that there, the trial court refused to exercise its discretion,
finding that the California Constitution (art. I, § 28, subd. (f)) required admission of
evidence of a 20-year-old prior robbery conviction. (Burns, supra, at p. 736.) The Court
of Appeal reversed, noting that section 28, subdivision (f), did not abrogate the court’s
discretion under Evidence Code section 352 to exclude evidence of prior felony
convictions when their probative value on credibility is outweighed by the risk of undue
prejudice. (Id. at p. 737.) The court further held that remoteness in time is a factor that
may still be considered by the trial court in exercising its discretion under Evidence Code
section 352. (Ibid.)
       The Burns court set forth factors to be considered in determining whether evidence
of a prior conviction should be allowed into evidence: (1) the length of time that has
elapsed since the conviction; (2) the length of sentence served on the prior conviction; (3)
the nature of the conviction; (4) the age of the defendant at the time the prior crime was
committed; and (5) the defendant’s conduct subsequent to the prior conviction. (Burns,
supra, 189 Cal.App.3d at pp. 737-739.) The court concluded that a conviction that is
20 years old, such as the one it was considering, “certainly meets any reasonable
threshold test of remoteness.” Turning to the age factor, the court noted that the
defendant was 29 years old at the time of the prior crime, and that it appeared there were
no intervening convictions. (Id. at pp. 738-739.)
       Defendant argues that had the Burns factors been considered in our case, they
would have weighed in favor of exclusion. Defendant was 50 years old at the time of


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trial, and his last conviction was in 2000 when defendant was 35. In 2000 he received a
five-year prison sentence, and remained free of custody with no further criminal conduct
for 10 years. Defendant argues that it could be fairly said that he committed the prior
crime in his relative youth and had turned his life around.
       We find Burns irrelevant for the same reason that Almarez is irrelevant. In Burns,
reversal was warranted because it was a “classic case for the exercise of trial court
discretion” and the “question of admissibility cannot be decided at the appellate level.”
(Burns, supra, 189 Cal.App.3d at p. 739.) Here, the trial court has exercised its sound
discretion, excluding seven prior felonies on the grounds of remoteness in time and
admitting one for the sole purpose of impeachment. Defendant’s arguments regarding his
age and apparent good conduct for the preceding 10 years were properly considered in
the trial court.
       Defendant further argues that the trial court erred in failing to “sanitize” the prior
conviction by referring to it only as a felony. Defendant relies on People v. Moultrie
(1979) 99 Cal.App.3d 77, 86, disapproved by People v. Barrick (1982) 33 Cal.3d 115,
superseded by statute or rule as stated in People v. Collins (1986) 42 Cal.3d 378. In
Moultrie, the defendant appealed his conviction on five counts of robbery on the ground
that the trial court erroneously denied his motion to exclude his prior attempted robbery
conviction. The trial court had determined that it was appropriate to allow the defendant,
should he testify, to be asked whether he had ever been convicted of a felony involving
theft. (Moultrie, supra, at p. 83.) The specific prior crime of attempted robbery was not
mentioned. (Id. at p. 86.) The Court of Appeal determined that the trial court carefully
weighed the relevant factors and struck a fair balance between the effect of a defendant
not testifying out of fear of being prejudiced because of impeachment, and clothing him
with a ‘false aura of veracity.’” (Id. at p. 86.)
       The same can be said of the trial court in this matter. The trial court carefully
weighed the relevant factors and determined that only the fact of the prior crime and the
name of the crime should be admitted in this matter. No abuse of discretion occurred.



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II. Section 1118.1 motion for dismissal
         Section 1118.1 allows the defense to make a motion to dismiss at the end of the
prosecution’s case due to insufficiency of the evidence produced. Here, defendant’s
counsel made such a motion, which the trial court denied. Defendant argues that this was
error.
         A. Applicable law and standard of review
         Upon a motion pursuant to section 1118.1, a trial court must dismiss an action “if
the evidence before the court is insufficient to sustain a conviction of such offense or
offenses on appeal.” (§ 1118.1.) We review independently a trial court’s ruling that the
evidence is insufficient to support a conviction. (People v. Cole (2004) 33 Cal.4th 1158,
1212-1213.) In reviewing the evidence, we review the entire record in the light most
favorable to the judgment to determine whether it discloses substantial evidence from
which a reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt. (Id. at p. 1212.)
         There are two core requirements for a finding of guilt under section 459: (1) that
the defendant entered the building where the crime occurred; and (2) that he did so with
the intent to commit grand or petit larceny or any felony therein. (§ 459.)
                “‘Although the People must show that a defendant charged with
         burglary entered the premises with felonious [or larcenous] intent, such
         intent must usually be inferred from all of the facts and circumstances
         disclosed by the evidence, rarely being directly provable. [Citations.]
         When the evidence justifies a reasonable inference of felonious [or
         larcenous] intent, the verdict may not be disturbed on appeal. [Citations.]’
         [Citation.]”

(People v. Price (1991) 1 Cal.4th 324, 462.)

         “Mere presence at the scene of the crime standing alone is not sufficient to justify
a finding of guilt. [Citation.]” (People v. Foster (1953) 115 Cal.App.2d 866, 868
(Foster).)




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       B. The record supports the trial court’s denial of the section 1118.1 motion
       Defendant argues that the evidence merely showed his presence at the scene of the
crime, citing Foster. In Foster, that defendant was in a car when police saw a package
containing drug paraphernalia and heroin thrown from the right front window. (Foster,
supra, 115 Cal.App.2d at p. 867.) All three individuals riding in the car denied
knowledge of the package and denied seeing either of the others throw it out the window.
A jury convicted all three defendants of possession of narcotics. (Id. at pp. 868-869.)
Two of the defendants appealed, and the Court of Appeal reversed the denial of one of
the defendants’ motion for new trial, finding that the jury’s finding all three guilty
suggested that “they did not clearly understand the quantum of proof required to fix guilt
upon any particular defendant.” (Id. at p. 869, italics added.)
       Here, unlike in Foster, the evidence showed far more than simply presence in the
vicinity of narcotics. The evidence showed that defendant was found hiding on a roof
under an air conditioning unit shortly after the burglar alarm sounded at 2:30 in the
morning. Defendant refused to leave his hiding place after police officers repeatedly
commanded him to do so. When he did exit, he was sweaty and covered in dust similar
to that which Officer Huynh had on his clothing after climbing through the hole in the
building’s roof. In addition, the jury was not required to believe defendant’s explanation
as to why he was on the roof at that hour. As the Foster court stated, “From this clumsy
attempt to manufacture a defense the jury might reasonably infer the guilt[]” sufficient
for conviction. (Foster, supra, 115 Cal.App.2d at p. 869.)2


2      For similar reasons, People v. Johnson (1984) 158 Cal.App.3d 850 and People v.
Bryson (1967) 257 Cal.App.2d 201, are distinguishable. Johnson involved a defendant
who was present at a residence where drugs were found in a hole in the ceiling. There
was no evidence that the defendant lived at the residence where the drugs were found.
(Johnson, supra, at pp. 853-854.) Bryson involved a defendant who was present in a
vehicle were stolen goods were found; however, the defendant was drunk and sleeping
heavily in the vehicle at the time, and there was no evidence that “would lead one to
believe this drunken man could plan a burglary or maneuver sufficiently” to enter a house
and steal the items. (Bryson, supra, 257 Cal.App.2d at p. 207.) As explained above, in
contrast to Johnson and Burns, the circumstantial evidence in this case constitutes

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       Defendant cites People v. Trevino (1985) 39 Cal.3d 667 (Trevino), disapproved on
other grounds in People v. Montiel (1993) 5 Cal.4th 877, disapproved in People v.
Sanchez (2016) 63 Cal.4th 665, to illustrate that even where fingerprints are found at a
crime scene, those prints may be insufficient proof of guilt. Trevino involved a
fingerprint found in a home where Trevino had previously been a guest, and there was no
evidence as to how or when the print came to be placed in the victim’s home. (Trevino,
at p. 697.) Trevino does not support reversal of the defendant’s section 1118.1 motion in
this matter.3
       Defendant was found hiding on the roof of a building shortly after the burglar
alarm was activated, covered in dust that appeared to be consistent with the material
dislodged in the illegal entry. This circumstantial evidence was sufficient to support the
trial court’s denial of defendant’s section 1118.1 motion.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                 ____________________________, J.
                                                 CHAVEZ
We concur:

__________________________, P. J.
BOREN

__________________________, J.
ASHMANN-GERST



substantial evidence from which a reasonable trier of fact could rationally conclude
beyond a reasonable doubt that defendant was guilty of the burglary.

3      For similar reasons, Birt v. Superior Court (1973) 34 Cal.App.3d 934 and People
v. Flores (1943) 58 Cal.App.2d 764 are distinguishable. Both involved fingerprint
evidence. Fingerprints were not in issue here and these cases do not support defendant’s
position that his section 1118.1 motion was improperly denied.

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