P. v. Contreras

Filed 12/7/06 P.v . Contreras CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for
publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
SILVIANO CONTRERAS,
Defendant and Appellant.
2d Crim. No. B186551
(Super. Ct. No. 1175432)
(Santa Barbara County)
Appellant Silviano Contreras was tried before a jury and convicted of
first degree residential burglary. (Pen. Code, § 459, 460.) He was sentenced to
prison for seven years: the six-year upper term plus one year for a prior prison term
enhancement found true by the court. (Pen. Code, § 667.5, subd. (b).) Appellant
contends: (1) his conviction must be reversed because the court admitted
prejudicial evidence that he had committed prior burglaries and erroneously denied
a motion for new trial made on this ground; (2) he was entitled to additional days of
presentence credits; and (3) the court erred when it imposed an upper term sentence
based on aggravating facts that were neither admitted by him nor found true by the
jury. We affirm.

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FACTS AND PROCEDURAL BACKGROUND
Jay Kuhlman's home on Blue Heron Lane in the City of Guadalupe
was burglarized sometime after he left for work at 6:30 a.m. on December 2, 2004.
Various valuables were taken. A screen on one window had been removed and a
sliding glass door had been forced open. A muddy shoeprint was found on the
screen.
At about 10:45 a.m., Guadalupe Police Chief William Tucker was
driving down Blue Heron Lane and saw co-defendant Katrina Baldivia standing
near the front door of Kuhlman's house. 1 She walked away from the house,
approached Tucker, and spoke to him briefly before walking to her nearby home.
At about noon that same day, Guadalupe Police Officer Frank Medina saw
appellant walking with two other people in Guadalupe. He handed a windbreaker to
another man, who tucked it under his arm and ran away. Medina asked Contreras
why he had given his jacket to the other man and Contreras denied doing so.
When Kuhlman returned home at 3:45 p.m., he discovered that his
house had been burglarized and called the police. Officers went to Baldivia's home
at about 5:30 p.m. Appellant was there with Baldivia. Appellant was not wearing
shoes, but at the officers' direction, he retrieved a pair of Nike sneakers, the pattern
of which were consistent with the muddy footprint found on Kuhlman's screen.
Evidence technicians lifted a print from the outside glass of a side window at
Kuhlman's house which matched appellant's left palm.
Appellant and Baldivia were each charged with first degree residential
burglary and were jointly tried. In addition to testimony concerning the current
charge, the prosecution presented evidence that appellant had been involved in the
1 Baldivia was convicted of first degree burglary under an aiding and
abetting theory and was sentenced to prison for the two-year lower term. We have
affirmed her conviction and sentence in a separate unpublished opinion.

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burglary of three other homes in Guadalupe. In the fall of 2002, his fingerprints
were found on a broken window of a burglarized home on 12th Street that was
occupied by his relatives. The defense stipulated that appellant stole property from
that home to buy food. In March 2003, a home on Snowy Plover Lane was
burglarized and electronic equipment was taken. Appellant's fingerprints were
found on a window. Also in March 2003, appellant was discovered at Baldivia's
house with stolen property from a home on Surfbird Lane that had been burglarized.
Baldivia admitted that she had participated in that burglary by knocking on the door
of the home and peering through the window to see if anyone was home.
DISCUSSION
Evidence of Prior Burglaries
The evidence of the three prior burglaries was introduced to prove
intent and the existence of a common plan under Evidence Code section 1101, subd.
(b).2 Appellant contends the trial court abused its discretion in admitting the
evidence because intent was not at issue, the existence of a common plan was
probative only to the extent it showed intent, and the evidence was relevant only to
criminal disposition or propensity. (§ 1101, subd. (a).) Appellant also argues that
the evidence was more prejudicial than probative under section 352.
Evidence of prior similar criminal acts is generally inadmissible to
prove character or criminal disposition, but it may be offered to establish some
other relevant fact such as intent, identity or the existence of a common plan or
scheme. (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) The jury was given a
modified version of CALJIC No. 2.50, which provided that evidence of the prior
burglaries "may not be considered by you to prove that defendant is a person of bad
character or that he has a disposition to commit crimes. It may be considered by
2 Further statutory references are to the Evidence Code unless otherwise
stated.

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you only for the limited purpose of determining if it tends to show: [¶] A
characteristic method, plan or scheme in the commission of criminal acts similar to
the method, plan or scheme used in the commission of the offense in this case
which would further tend to show the existence of the intent which is a necessary
element of the crime charged."
A defendant's not guilty plea puts all the elements of a crime in issue,
including intent as evidenced by a common scheme or plan. (People v. Ewoldt,
supra, 7 Cal.4th at p. 400, fn. 4.) However, "in most prosecutions for crimes such
as burglary and robbery, it is beyond dispute that the charged offense was
committed by someone; the primary issue to be determined is whether the defendant
was the perpetrator of that crime. Thus, in such circumstances, evidence that the
defendant committed uncharged offenses that were sufficiently similar to the
charged offense to demonstrate a common design or plan (but not sufficiently
distinctive to establish identity) ordinarily would be inadmissible. Although such
evidence is relevant to demonstrate that, assuming the defendant was present at the
scene of the crime, the defendant engaged in the conduct alleged to constitute the
charged offense, if it is beyond dispute that the charged crime occurred, such
evidence would be merely cumulative and the prejudicial effect . . . would outweigh
its probative value." (Id. at p. 406.)
Assuming without deciding that the court should have excluded
evidence of the prior burglaries as more prejudicial than probative, the erroneous
admission of prior criminal acts does not compel reversal unless it is reasonably
probable the defendant would have obtained a more favorable result if the evidence
had been excluded. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019.)
Appellant's palm print was discovered on the window of Kuhlman's home during
the investigation of the burglary and he was contacted at the home of co-defendant
Baldivia, who earlier had been seen on the porch of the burglarized home. It is not

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reasonably probable the jurors would have returned a more favorable verdict had
they not heard the evidence of prior crimes.
Appellant also complains that his Sixth Amendment confrontation
clause rights were violated because the primary evidence linking him to one of the
prior burglaries was an out-of-court statement to police by co-defendant Baldivia in
which she admitted knocking on the door and looking in the window during the
commission of that prior offense. The statement was sanitized to omit any
reference to appellant as required by Bruton v. United States (1968) 391 U.S. 123,
but even if we assume, as he contends, that it was testimonial and was thus barred
by Crawford v. Washington (2004) 541 U.S. 36, the error was harmless. Other
evidence established that appellant was caught with stolen property from the prior
burglary, and Baldivia's statement was limited to a description of her own
involvement in that offense.
Because any error in admitting evidence of the prior burglaries was
harmless, we reject appellant's related claim that the court abused its discretion by
denying his motion for a new trial on the same ground.
Custody Credits
Appellant argues that the court improperly disallowed presentence
credits for days he spent in custody on a parole revocation. He argues that the
parole revocation term lasted longer than was authorized under prison regulations
and that the excess time was attributable solely to the current charges. We disagree.
Appellant was on parole when he was contacted by police on the day
of the burglary on December 2, 2004. Officers discovered less than an ounce of
marijuana in his possession and placed him in custody on a parole hold. He
ultimately waived his right to a parole hearing and accepted a 12-month return to
prison for a parole violation, which he served while the charges in this case were
still pending. The parole revocation term expired on August 2, 2005, 44 days
before the sentencing hearing in this case. At the sentencing hearing, the trial court

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awarded 44 days of actual custody credits for the days appellant spent in custody
after the parole revocation term expired, plus 22 days of good time/work time
credits.
A defendant who is sentenced to prison is entitled to receive credit for
days spent in presentence custody. (§ 2900.5, subd. (a).) Such presentence credits
shall be awarded "only where the custody to be credited is attributable to
proceedings related to the same conduct for which the defendant has been
convicted." (§ 2900.5, subd. (b).) There is no entitlement to presentence credits
when the defendant was in custody for reasons unrelated to the conduct for which
sentence is imposed. "Section 2900.5 does not authorize credit where the pending
proceeding has no effect whatever upon a defendant's liberty." (In re Rojas (1979)
23 Cal.3d 152, 156.)
In cases where the defendant is in custody for multiple reasons, the
Supreme Court has formulated a rule of strict causation that precludes an award of
credits "unless it is demonstrated that the claimant would have been at liberty . . .
were it not for a restraint relating to the proceedings resulting in the later sentence."
(In re Joyner (1989) 48 Cal.3d 487, 489; see also People v. Bruner (1995) 9 Cal.4th
1178, 1193-1194.) The defendant bears the burden of establishing an entitlement to
credits in a situation where he or she is in custody under multiple restraints.
(People v. Purvis (1992) 11 Cal.App.4th 1193, 1196-1197.)
Appellant acknowledges that he is not entitled to credit for time that
was also attributable to his parole revocation. But he argues that his custody on the
parole revocation should have been limited to six months from his arrest date on
December 2, 2004. He relies on title 15, section 2646.1 of the California Code of
Regulations, which provides that the length of confinement for possessing less than
an ounce of marijuana is zero to four months. But appellant agreed to a parole
revocation term of 12 months, and section 2646.1 allows the parole authorities to
"impose a period of confinement that is outside the assessment range if justified by

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the particular facts of an individual case and if the facts supporting the term are
stated on the record." Appellant was serving an authorized parole revocation term
until August 2, 2005 and was not entitled to credits on the current case until that
term expired.
Blakely v. Washington
Appellant complains that the upper term sentence on the burglary
counts runs afoul of Blakely v. Washington (2004) 542 U.S. 296, because it was
based on aggravating factors that were neither admitted by him nor found true by
the jury. This argument fails for the reasons stated in People v. Black (2005) 35
Cal.4th 1238, by which we are bound. Moreover, defense counsel agreed on the
record that the court rather than the jury could determine which aggravating factors
applied. Under Blakely, a defendant may consent to judicial factfinding
circumstances used to enhance the sentence.
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
PERREN, J.

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James F. Rigali, Judge
Superior Court County of Santa Barbara
______________________________
Gilbert W. Lentz, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General,
Lawrence M. Daniels, Supervising Deputy Attorney General, Daniel C. Chang,
Deputy Attorney General, for Plaintiff and Respondent.

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