Filed 2/18/16 P. v. Meraz CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B260497

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA090871)
         v.

JORGE ESTEBAN MERAZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Jared D. Moses, Judge. Affirmed as modified.

         Gloria C. Cohen, 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, Victoria B. Wilson and Garett A.
Gorlitsky, Deputy Attorneys General, for Plaintiff and Respondent.
                                              __________________
       In an information filed by the Los Angeles County District Attorney’s Office,
defendant and appellant Jorge Esteban Meraz was charged with first degree residential
burglary, person present (Pen. Code, § 459, count 1),1 first degree residential burglary
(§ 459, count 2), and attempted first degree residential burglary (§§ 664/459, count 3).
As to all counts, it was further alleged that appellant had suffered three prior strikes
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), had suffered two previous serious
felonies (§ 667, subd. (a)), and had served three prior prison terms (§ 667.5, subd. (b)).
       Appellant pleaded not guilty and denied the allegations. Trial was by jury. The
jury found appellant guilty as charged.
       In a bifurcated court trial on appellant’s prior convictions, appellant admitted, and
the trial court found true, all prior conviction allegations.
       Appellant’s motion2 pursuant to People v. Superior Court (Romero) (1996) 13
Cal.4th 497 was heard and denied.
       The trial court denied probation and sentenced appellant to 105 years to life in
state prison as follows: 25 years to life on count 1, plus 10 years for two prior serious
felonies; 25 years to life on count 2, plus 10 years for two prior serious felonies, to run
consecutively; and 25 years to life on count 3, plus 10 years for two prior serious
felonies, to run consecutively. He was awarded 456 days of presentence custody credit,
consisting of 397 actual custody days and 59 days of conduct credit. The trial court also
imposed various fines and fees.
       Appellant timely filed a notice of appeal. On appeal, he argues: (1) His sentence
amounts to cruel and unusual punishment in light of his mental illness; (2) The evidence
is insufficient to sustain his 1993 conviction as a serious felony, so it should be stricken;
and (3) The abstract of judgment must be amended to correct clerical errors.


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

2     Attached to the motion was a psychiatric evaluation of appellant prepared in
August 2014 by Dr. Suzanne M. Dupee. She opined that he presented with a diagnosis of
schizophrenia, which had been untreated at the time he committed the crimes.

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                              FACTUAL BACKGROUND
I. Prosecution Evidence
       At around 11:00 a.m. on September 6, 2013, Elena Valencia (Valencia) was at
home in Monterey Park. She was in her son’s bedroom when she heard the doorbell ring
multiple times. Valencia went to the front of the house and looked out the window. She
went outside the front sliding glass door but did not see anyone. She heard noise by the
trash cans near the garage. She was afraid and went back inside the sliding glass door
and closed it. She turned toward her dining room and saw appellant standing there.
Valencia, “scared and angry,” asked him, “‘What are you doing inside my house?’”
Appellant started shouting at Valencia to open the door. Appellant was sweating and
screaming. She opened the door and appellant tried to leave, but he was stopped by the
front gate. Valencia opened the gate and appellant “took off running.” Valencia ran
toward her son’s room to get her cell phone, but it was no longer there. Also, the screen
on her son’s bedroom window was out of place.
       Valencia ran out to the street and saw her next-door neighbor, Gina Casillas
(Casillas). Casillas had seen appellant walking across the street. He disappeared from
her line of sight “[a]nd, typically, because [she] live[s] on a curve, if someone was going
to continue heading down towards the shopping center, they’d come back into view. And
he never came back into view.” Casillas kept looking and then went into her backyard to
see if appellant had climbed the fence to take a shortcut to the shopping center. Casillas
did not see anyone so she went out of her front door. Once outside, she saw appellant
coming out the front gate of Valencia’s house. Casillas saw Valencia, who told her that
appellant had been inside her house. Casillas went back inside her house to get her cell
phone and car keys and drove to follow appellant. She also called 911.
       At the same time, John Flores (Flores) was at his home on the same street. He was
in his bedroom when he heard his doorbell ring repeatedly. As he walked towards the
door, he heard his door shaking as if someone was trying to open it. Flores opened the
latch to a six-by-six inch window in his door and saw appellant, who he had never seen
before. Flores said something to the effect of, “‘Yes. Can I help you?’” Appellant

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looked at Flores, appeared scared, eyes opened, and was “fidgety.” Appellant said, “‘Do
you know where Riggin Street is at?’”3 Flores knew that Riggin Street was in the
neighborhood, a few blocks away. Flores replied, “‘Yes,’” and pointed in the direction of
Riggin Street. Appellant said, “‘Okay,’” and “was fidgeting and he started walking away
and looking back at [Flores] and then he left.”
       Flores, an off duty police officer, found appellant suspicious. He got into his car
and drove down the street to see if appellant was knocking on other doors. Flores came
upon Valencia and Casillas on the sidewalk talking to each other. Valencia was crying
and appeared scared. Flores stopped and asked Valencia what had happened. They told
him that a man had broken into Valencia’s house and that he went south down the street.
Flores called 911 and continued driving south to find appellant. Flores told the operator
that he was following a burglary suspect. Flores drove a couple of blocks and saw
appellant running. Flores followed him. Appellant continued running until he saw a
different car, following him, at which point he jumped a fence into the yard of a house on
that corner. In the other car were Casillas and Valencia. Casillas saw appellant jump
over the wall entering the backyard. Flores told Casillas and Valencia to stay at that
corner to watch for appellant while he kept an eye on the alley behind. The police arrived
and Flores informed the officers what he had covered as far as the perimeter.
       Officer Vincent Vasquez was one of the first officers to arrive at the scene. He
spoke with Valencia and Casillas and determined that a search of the area needed to be
conducted. Officer Vasquez set up a perimeter. Officers went door-to-door, speaking
with residents and, going into their backyards, looking for any signs of forced entry.
       Officers knocked on the door of a house on Hammel Street. Appellant opened the
door. Officers initially believed appellant was the actual homeowner. Officers told him
that they were conducting a burglary investigation in the area and asked if there was
anyone in the house, if he had seen anyone, and if he could bring in any pets because they




3      The parties stipulated that appellant was living on Riggin Street at the time.

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were going to search the backyard. Appellant said that the officers could go in the
backyard and that he would brings the dogs in.
       Officers informed the command post that they were speaking with a person at this
particular residence and were about to initiate a search of the residence. A supervisor
communicated back that the residents (Arthur and Sylvia Ramirez) were at the command
post and that no one should be home. Officers sent the Ramirezes to the residence to
ensure that it was in fact theirs and that no one should be in it. Mr. Ramirez confirmed
that no one should be in the house. He also told officers that there were multiple
unsecured firearms in the residence, including a high-powered rifle.
       Meanwhile, officers returned to the front door, asked appellant if they could see
his identification, and asked if they could speak with him outside. Appellant said that he
was not part of any of “the business” and was not going to come outside. Officers asked
again. Appellant said that he had his liberties and that he was not going to step out.
Officer Vasquez then told him to “‘open the door.’” Appellant said “‘No’” and slammed
the door shut.
       Officers pulled back and called in the SWAT (special weapons and tactics) team.
The SWAT team set up containment with armored vehicles. Officers made an
announcement, telling appellant to surrender. They also called the phone in the residence
and shot rubber bullets at the front door and flash bangs to gain his attention. Appellant
did not answer. Officers then used a “‘throw phone’” in an attempt to establish
communication with appellant. Appellant did not pick up. None of the attempts to
communicate with appellant was successful. Officers shot canisters of tear gas into the
residence in an attempt to have appellant exit. Appellant did not come out.
       Officers broke down the front door and the SWAT team entered the residence with
a canine unit. Officers cleared all of the rooms but did not find appellant. Officers
noticed that the attic access door panel in the ceiling had fresh marks and dirty
fingerprints on it. They used a “pole cam” to search the attic to see if appellant was in
there. Officers noticed that the fiberglass insulation had been moved. They then sent
Canine Max to search the attic. Canine Max alerted that a person was in the attic and

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Canine Max bit appellant. Officers then entered the attic, saw appellant, and told him to
crawl toward the officers. Eventually, appellant crawled toward the officers, who
released the canine, handcuffed appellant, and brought him down from the attic. The
process to arrest took about 10 hours and multiple air units were used.
       After appellant was arrested, Flores identified him as the person he saw on his
front porch and who he followed down the street. Valencia identified him as the person
she saw in her dining room.
       Officers returned to the residence the next day and found a pillowcase full of
jewelry and coins and three water bottles in the attic in the area where appellant was
hiding. Mrs. Ramirez identified some of the items as hers. Mr. Ramirez identified some
of the items as his. The pillowcase was the Ramirezes’ daughter’s pillowcase. They did
not know appellant and had never seen him before.
       The Ramirez house was severely damaged as a result of this incident.
       Detective Gil Alvarez testified that a common trend for burglaries at the time was
“knock-knock burglaries, where individuals knock at a residence and determine whether
someone’s home. If not, then they usually make entry from the rear of the residence.”
He opined that it was “very common” that a burglar not have tools, gloves, or mask.
II. Defense Evidence
       Appellant did not offer any evidence.
                                      DISCUSSION
I. Appellant’s sentence is not unconstitutional
       A. Legal Principles
       A sentence is cruel or unusual under the Eighth Amendment to the United States
Constitution if it is “grossly disproportionate to the severity of the crime.” (Rummel v.
Estelle (1980) 445 U.S. 263, 271; Ewing v. California (2003) 538 U.S. 11, 21.) A
sentence is cruel or unusual under California law if “‘it is so disproportionate to the crime
for which it is inflicted that it shocks the conscience and offends fundamental notions of
human dignity.’ [Citation.]” (People v. Norman (2003) 109 Cal.App.4th 221, 230.) In
making that determination, courts consider the nature of the offense and offender, and

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compare the sentence with sentences imposed for more serious crimes in California and
for the same crime in other jurisdictions. (Ibid.; see In re Lynch (1972) 8 Cal.3d 410,
424–427.)
       The analysis under federal constitutional law is virtually identical to the analysis
under state law, and “the federal Constitution affords no greater protection than the state
Constitution.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
       B. Analysis
       Applying these factors, we conclude that appellant’s sentence is constitutional.4
He committed a first degree residential burglary with a person present, a first degree
residential burglary, and an attempted first degree residential burglary, crimes that are
undoubtedly serious and offensive. Making matters worse, when appellant was caught,
he refused to surrender, requiring the police department to shutdown the block, bring in
the SWAT team, and use tear gas in a 10-hour process.
       Furthermore, appellant’s criminal record reflects numerous convictions from 1993
through the present crimes. This record of recidivism stretching throughout his entire
adulthood demonstrates that he deserved a life sentence. (Ewing v. California, supra,
538 U.S. at pp. 29–30 [a third-strike sentence “is justified by the State’s public-safety
interest in incapacitating and deterring recidivist felons, and amply supported by [the
defendant’s] own long, serious criminal record”]; see also People v. Sullivan (2007) 151
Cal.App.4th 524, 571.)
       Thus, we conclude that appellant’s sentence does not violate either the federal or
state Constitution. (People v. Haller (2009) 174 Cal.App.4th 1080, 1091; People v.
Romero (2002) 99 Cal.App.4th 1418, 1433.)
       Appellant’s cocaine addiction does not support his claim that his sentence is cruel
or unusual. (People v. Goodwin (1997) 59 Cal.App.4th 1084, 1094.)


4       Because we reach the merits of this issue, we do not discuss whether appellant
forfeited his objection and/or whether appellant’s trial counsel was ineffective for failing
to assert an objection below.


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       Likewise, appellant’s recent diagnosis with schizophrenia (after his arrest in this
case) does not aid his cause on appeal. 5 While appellant claims that his behavior
establishes that he was acting as a mentally disturbed person, the appellate record
indicates that he was quite competent when he committed the crimes in this case. He
used the “knock-knock burglary” technique to attempt to commit these crimes
undetected. He pretended to be a resident when the officers contacted him at the
Ramirezes’ home, and he invoked his “liberties” when officers asked him to go outside.
His conduct demonstrates criminality; thus, his life sentence was not cruel and/or
unusual. (People v. Boyce (2014) 59 Cal.4th 672, 720; People v. Poggi (1988) 45 Cal.3d
306, 348.)
       Appellant argues that there is insufficient evidence of the prior serious or violent
felony conviction allegation for discharging a firearm. (§ 246.3) But, appellant admitted
this prior serious or violent conviction allegation and, as such, a sufficiency claim does
not lie. (People v. Thomas (1986) 41 Cal.3d 837, 845; People v. Kane (1985) 165
Cal.App.3d 480, 487.)
       In urging us to reverse, appellant relies upon People v. Golde (2008) 163
Cal.App.4th 101. That case is inapposite. In that case, “there was no admission or
evidence that [the defendant’s] prior conviction was based on personal discharge of a
firearm . . . so as to qualify as a ‘serious felony.’” (Id. at p. 110.) In other words, the
defendant did not admit to a prior serious or violent felony. (Id. at p. 113.) Here, the trial
court advised appellant that it was alleged that he suffered three prior serious and/or
violent felony convictions and that he suffered two prior burglary convictions, which
were also alleged as prior serious felony convictions. Appellant admitted that he
“suffered all the prior convictions that [were] read to [him].” Appellant’s admission is
sufficient.


5     Appellant had not been taking medication for his mental illness from the time he
had been released on parole for a burglary on July 5, 2013, until his arrest on
September 6, 2013. Once he was arrested for these crimes, he again was prescribed
medication for his mental illness.

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III. Corrections to the abstract of judgment
       The abstract of judgment indicates that appellant was convicted, in count 3, of
“ATTEMPTED FIRST DEG BURGLARY, PERSON PRESENT.” But, the appellate
record reflects that the prosecutor struck the “person present” allegation from count 3,
and the verdict form on count 3 does not have a person present allegation. Accordingly,
the abstract of judgment must be corrected to delete from count 3 the “person present”
language.
       The abstract of judgment must also be corrected to reflect appellant’s actual days
in custody. He was arrested on September 6, 2013, and was sentenced on October 8,
2014, which totals 398 days. The abstract of judgment must be corrected to show 398
actual days plus 59 local conduct credits for a total of 457 credits. (People v. Browning
(1991) 233 Cal.App.3d 1410, 1412.)
                                     DISPOSITION
       The judgment is affirmed as modified. The abstract of judgment shall be modified
to strike the “person present” language from count 3, and it shall reflect 398 actual days
and 457 total credits.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                   _____________________________, Acting P. J.
                                         ASHMANN-GERST

We concur:


______________________________, J.
           CHAVEZ


______________________________, J.
           HOFFSTADT




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