Opinion
D069813
09-05-2017
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL PLANDOR VENEGAS, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS268104) APPEAL from a judgment of the Superior Court of San Diego County, Michael D. Wellington, Judge. Affirmed in part; reversed in part and remanded with directions. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
This case involves a conspiracy on the part of defendant Miguel Plandor Venegas and codefendant Sami Hanna Antar—working together with and through its members Ricardo Duron, Ronnie Lee Fults II, Jose Montes, and Paulina Aguirre (sometimes conspirators)—to commit a series of residential burglaries in San Diego County between August 2012 and July 2013 (the conspiracy). Venegas was charged by amended information with 46 counts of first degree burglary (Pen. Code, §§ 459 & 460, counts 1-13, 15-21, and 23-48); two counts of attempted first degree burglary (§§ 664, 459 & 460, counts 14 & 22); and one count of conspiracy to commit residential burglary (§§ 182, subd. (a)(1), 459 & 460, count 49). With respect to the conspiracy count, the amended information further alleged 157 overt acts and alleged Venegas suffered multiple probation denial priors (§ 1203, subd. (e)(4)); one prison prior (§§ 667.5, subd. (b) & 668); two serious felony priors (§§ 667, subd. (a)(1), 668 & 1192.7, subd. (c)); and eight strike priors (§§ 667, subds. (b)-(i), 1170.12 & 668).
Antar is not a party to this appeal.
All further statutory references are to the Penal Code.
On motion by the defense, the court pursuant to section 1118.1 dismissed counts 10, 21, and 36, and the corresponding overt acts pertaining to such counts (i.e., numbers 31, 32, 72, 122, 123, and 124). The jury found Venegas not guilty of count 25, but returned guilty verdicts on all remaining charges. At a bifurcated proceeding, the court found true the probation denial priors, prison prior, the serious felony priors, and the eight strike priors. The court sentenced Venegas to prison for the term of 1,100 years to life consecutive to 440 years, calculated as follows: 25 years to life on each count, enhanced by 10 years for the two serious felony priors. Venegas appealed.
On March 6, 2017, appointed counsel for Venegas filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende) indicating both counsel and a staff attorney reviewed the 4,155 pages of transcripts (including augmented transcripts) and were unable to identify any arguable issues for reversal on appeal. As such, appointed counsel asked this court to review the record for error as mandated by Wende.
In addition, pursuant to Anders v. California (1967) 386 U.S. 738, appointed counsel set forth the following possible, but not arguable, issues to assist this court in conducting its Wende review: (1) whether the court abused its discretion when it admitted evidence of cell tower site activity to show the general location of various cell phones connected to Venegas, defendant Antar and others involved in the conspiracy, after the defense objected on the ground such technology was unproven and unreliable; (2) whether there is sufficient evidence in the record to support Venegas's convictions on each of the 44 counts returned by the jury; and (3) whether the court abused its discretion when it refused to strike a strike prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
In connection with our review under Wende, this court on March 7, 2017, advised Venegas that he could file a supplemental brief if he deemed it necessary. The record shows appointed counsel also similarly advised Venegas. Venegas did not file any brief.
Partly as a result of documents judicially noticed by defendant Antar in connection with his separate appeal, case No. D070094, and in conducting our Wende review, we have identified two issues, one of which requires remand. The first issue concerns direct victim restitution imposed on Venegas by the court under section 1202.4, subdivision (f). As we explain, ambiguity exists concerning who among the members of the conspiracy is obligated to pay restitution under this statute and the amount of restitution that is to be paid. As such, remand is warranted to allow the trial court to clarify this issue, and only this issue, as it pertains to Venegas.
This court likewise will remand this same issue in connection with defendant Antar's separate appeal.
The second issue concerns the $1,542 theft case fine the court imposed on Venegas under section 1202.5, subdivision (a). As we explain, that fine is $10 per case, not per count. As such, Venegas's abstract of judgment should be amended accordingly. In all other respects, the judgment of conviction of Venegas is affirmed.
DISCUSSION
A. The Conspiracy
The amended information alleged between August 2012 and July 2013, Venegas and codefendant Antar, joined at various times by Duron, Fults, Montes and/or Aguirre, conspired to commit, and/or committed, residential burglaries in San Diego County. All of the burglaries took place during daylight hours and on weekdays. The majority of the burglaries took place in residences located in Chula Vista.
As discussed in detail, post, the evidence shows Venegas and other members of the conspiracy set out mid- to late-morning and drove neighborhoods searching for what the court described at Venegas's sentencing as "soft" targets to burglarize. Once a potential target was identified, Aguirre—until her arrest in late November 2012—typically went to a home's front door, while the others, including Venegas, waited in the car, in an effort to determine if the home was occupied. If nobody answered and the home appeared unoccupied, Venegas, along with Duron and/or Fults entered the home out of view from the street. In many of the burglaries, they used an object from the home's backyard, such as a brick or rock, to smash a window and/or a sliding glass door to gain entry into the home.
In nearly all of the incidents, residents came home to find their homes ransacked, particularly in the bedrooms, and their jewelry, electronics, and other items including guns, knives, jewelry boxes, coins and, in some cases, cars, missing. In many of the burglaries, knives were left in the bedroom area or in other areas of the home that had been searched and ransacked during the break-in. In addition, many residents also found pillowcases had been taken from their bedroom pillows, which ostensibly were used to carry the loot out of the homes.
In late August 2012, police stopped Montes as he was driving his baby blue 1959 Volkswagen Beetle. His car was impounded because he was driving on a suspended license. A search of his car revealed items that had been stolen from homes burglarized during the conspiracy. Although his car was impounded, Montes was not arrested for his participation in the burglaries until April 2013.
Aguirre also participated in myriad burglaries until her arrest on November 28, 2012. Both Montes and Aguirre cooperated with law enforcement and gave statements that subsequently helped lead to the arrests of Venegas and defendant Antar among others.
On June 6, 2013, police searched Fults's residence located in Spring Valley and found a large amount of property inside pillowcases and handbags. Most of the jewelry found in the June 6 search was costume jewelry. Also found during the search were "jewelry boxes, safes, [a] gun [and] gun equipment." Fults was arrested that same day. Items recovered from Fults's residence were later displayed by law enforcement at a property viewing held in summer 2013.
Venegas, who "spearheaded" the "burglary ring," was arrested on October 30, 2013, for his participation in the conspiracy. Inside Venegas's wallet, law enforcement found a "couple of pawn tickets" in Fults's name from a chain of pawn shops, one of which was located in Chula Vista. Law enforcement subsequently went to that shop and identified a "thick gold chain" and a gold cross with diamonds that Fults had pawned.
On December 3, 2013, law enforcement obtained a warrant and searched Antar's store known as "Antar's Jeweler" and "King of Bling" located in a suite in the Jewelers Exchange building in downtown San Diego. Law enforcement found most of the jewelry was lying about his suite, including on his desk or in boxes inside two "safes with nothing stating value, price, where it came from, where it's going—nothing like that." Because no ledgers were found and because most, if not nearly all, of the jewelry had no identifying features (i.e., a tag), law enforcement struggled to determine "who own[ed] what."
From this search, law enforcement seized "about 600 pieces of jewelry, 18 knives, one Versace purse, 14 .9 mm bullets, one .40 caliber bullet, two silver teapots, one sword, one set of brass knuckles, one brass dish, five folders with collector coins [and] various coins . . . ." Law enforcement also searched Antar's computer, where many pictures of items taken from homes burglarized during the conspiracy were found. A property viewing of items recovered from the December 3 search of Antar's business was held in early January 2014.
B. Cell Phone Evidence
During trial, the defense objected on the basis of People v. Kelly (1976) 17 Cal.3d 24 (Kelly) (abrogated by statute on another point as explained in People v. Wilkinson (2004) 33 Cal.4th 821, 845-848), to the admission of cell tower records from at least three cell phone providers that the prosecution and its experts used to show the general location of cell phones connected to Venegas, Antar and others involved in the conspiracy, at or near the time of the burglaries and at other times relevant to the conspiracy.
This rule used to be referred to as the Kelly-Frye rule. However, as a result of changes in federal law, Frye v. United States (D.C. Cir. 1923) was superseded and the rule is now known in California as the Kelly test or rule. (See People v. Bolden (2002) 29 Cal.4th 515, 545.)
In California, the Kelly test governs the admission of expert testimony regarding "new scientific methodology." (People v. Leahy (1994) 8 Cal.4th 587, 591 (Leahy).) Under this test, a proponent of such evidence must establish: (1) the new methodology is reliable by showing it has gained general acceptance in the relevant scientific community; (2) the witness furnishing the testimony is qualified as an expert to give an opinion on the subject; and (3) correct scientific procedures were used in the particular case. (Kelly, supra, 17 Cal.3d at p. 30.)
However, our high court in Leahy explained the Kelly test "is applicable only to 'new scientific techniques,' " that is, " 'to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law.' [Citation.]" (Leahy, supra, 8 Cal.4th at p. 605; see also People v. Stoll (1989) 49 Cal.3d 1136, 1155-1156 (Stoll) [explaining the "narrow 'common sense' purpose" behind the Kelly rule is to "protect the jury from techniques which, though 'new,' novel, or ' "experimental," ' convey a ' "misleading aura of certainty " ' "].)
In Stoll, our high court concluded the Kelly rule did not apply to proposed expert psychological testimony, based in part on the administration of certain tests, because the expert testimony was based on methods that were not new to psychology or the law and carried "no misleading aura of scientific infallibility." (Stoll, supra, 49 Cal.3d at p. 1157; People v. Clark (1993) 5 Cal.4th 950, 1018 [concluding expert testimony regarding blood splatter analysis was not subject to the Kelly test because the admissibility of blood spatter testimony predated Kelly and because "neither the experiments conducted in connection with such analysis nor the principles underlying it produce an 'aura of scientific infallibility,' " inasmuch as it is a "matter of common knowledge . . . that blood will be expelled from the human body if it is hit with sufficient force and that inferences can be drawn from the manner in which [it] lands upon other objects"], disapproved on another ground as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The decision in People v. Garlinger (2016) 247 Cal.App.4th 1185 (Garlinger) informs our analysis on this issue. There, the defendant argued he received ineffective assistance of counsel when the defense failed to object to a detective's testimony concerning the general location of the defendant's cell phone in relation to various cell phone towers to which that phone connected both before and after the robbery of a motel clerk at gunpoint. The defendant further argued such testimony was inadmissible under the Kelly test. (Id. at pp. 1187-1188.)
The Garlinger court disagreed, concluding that "expert testimony explaining a cell phone signal received by a certain side of a cell tower must have come from that side of the tower and in the general vicinity of the tower does not describe a new scientific technique subject to the standard set forth [in Kelly] . . . for admitting the results of such techniques." (Garlinger, supra, 247 Cal.App.4th at p. 1187.) In reaching its decision, the Garlinger court explained that, "while cell phones are relatively new devices, the methodology is not new. Cell phones operate like 'sophisticated radios' by sending and receiving a radio signal to and from a cell tower and base station in their general vicinity. [Citation.] The area of the particular tower's coverage is known as a 'cell.' As the cell phone user moves from cell to cell, the wireless company transfers the call to the new cell's tower and base station. [Citation.] As previously stated, the transmission of radio signals from one place to another is a technology that has been around for more than a century. [Citation.] There is nothing new or experimental about this technology. Nor is there anything dubious about science's understanding of radio waves; as relevant here, they generally travel in a straight line. [Citation.] Thus, determining the general location of a cell phone based on which sector of the particular cell tower to which that phone's signal connected cannot be considered a 'new scientific methodology.' (People v. Leahy, supra, 8 Cal.4th at p. 91.)" (Id. at pp. 1195-1196.)
The Garlinger court further explained that the detective's expert testimony concerning the general location of the defendant's cell phone in relation to various cell towers to which that phone connected at key times was the type of testimony "routinely admitted in the trial courts of this state without any suggestion the Kelly test applies. (See, e.g., People v. Zavala (2013) 216 Cal.App.4th 242, 248 [cell phone call detail records admitted at trial and held on appeal to be admissible under the business records exception to the hearsay rule; no challenge to the admission of this evidence under Kelly]; People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1544-1545 [testimony regarding call detail analysis admitted at trial; no challenge to the admission of this evidence under Kelly ]; People v. Vu (2006) 143 Cal.App.4th 1009, 1016-1017, 1021-1023, 1027-1028 [testimony regarding call detail analysis admitted at trial and contributed to the substantial evidence held to support the defendant's convictions; such evidence was also held to have corroborated a certain accomplice's testimony; no challenge to the admission of this evidence under Kelly]; People v. Walker (2006) 139 Cal.App.4th 782, 791 & fn. 5 [call detail records admitted at trial were noted to have been inconsistent with the defendant's alibi; no challenge to the admission of this evidence under Kelly ].)" (Garlinger, supra, 247 Cal.App.4th at p 1196.) Thus, the Garlinger court found not only was the "methodology not new to science, neither [was] it new to the law." (Ibid., citing Leahy, supra, 8 Cal.4th at p. 605.)
We agree with the court in Garlinger that the scientific knowledge of transmitting radio signals between two locations (cell phone and cell tower) is not a new technology. (See Garlinger, supra, 247 Cal.App.4th at p. 1187.) We likewise conclude an expert witness's testimony about (1) how such a system works—including how a cell phone provider's network determines the cell tower that is used to connect a call and how a call is transferred between towers as the phone moves during a call, and (2) how records are kept in connection with that system, are not subject to the Kelly test, but instead go to the weight of the expert's opinion. (See Garlinger, at p. 1187.)
But this does not end our analysis on this issue. The Garlinger court further concluded that the detective's testimony regarding the general location of the defendant's cell phone did not create a " 'misleading aura of scientific infallibility.' " (Garlinger, supra, 247 Cal.App.4th at p. 1196, quoting Stoll, supra, 49 Cal.3d at p. 1157.) The court noted the detective did "not purport to be able to determine the precise location of the phone. Nor did he testify cell phone signals always connect to the closest tower. However, in order to connect to a particular tower, the cell phone would have to be located within the coverage area of that tower and in the direction of the particular sector's coverage. The detective did not define the coverage area of any given cell tower. Instead, he testified simply in terms of which general direction the phone was located in relation to the particular tower and whether or not a certain landmark, e.g., the [motel where the robbery occurred], was in that general area. We believe the jury was capable of evaluating such testimony without being 'blindside[d].' (Ibid.)" (Garlinger, at pp. 1196-1197.)
Here, Martha Haecherl testified that she worked for a cell phone provider as a "customer service analyst"; that her duties included among others custodian of records; that she analyzed " 'call detail records' " for the relevant time periods from at least one of the members involved in the conspiracy; and that using a cell-site key, a cell tower number's coordinates (i.e., latitude and longitude) and street address that connected a call could be easily located.
Haecherl stated there were multiple factors affecting the range of a particular cell tower. Such factors included "[c]apacity, line of sight, building materials, topography, geography" and signal strength. She noted that all of these factors are considered by a network's computers when a cell phone call is placed and that, based on these factors, the tower with the "best" signal, as opposed to merely the closest tower, will be the one that connects the call via a switching center.
Thus, Haecherl stated that while a cell phone could be in close proximity to one network tower, it was quite possible another cell tower further away could end up connecting the call if the closer tower, for example, is already at capacity. As such, much like the detective's testimony in Garlinger, Haecherl agreed this technology cannot determine the "exact location from which a person made a call." As a matter of common sense, Haecherl also agreed this technology could not identify who made the call, but rather that a call was made from a "target number."
Kathleen Gillis also testified in this case. She stated that she was employed as a radio frequency engineer; that her job included the responsibility of "maintain[ing] the air interface for cell phones and cell towers"; and that she obtained and reviewed records of at least three cell phone numbers that were affiliated with and/or connected to members involved in the conspiracy. Although Gillis was employed by a different cell phone provider than Haecherl, Gillis's testimony similarly involved information kept in the company's "call detail records" including the connection date, the time stamp for the call, the tower used to connect the call and the "tower coordinates." Like Haecherl, Gillis testified that the one of the biggest factors in call networks is range; that conceivably, a phone could connect to a tower 20 miles away in areas where there is little to no "clutter"; and that, at the same time, a cell phone may not get a signal from a cell tower across the street.
Kelly Walker also testified as an expert on cell phone technology. Like Haecherl and Gillis, Walker also worked for a cell phone provider that served at least one of the phones affiliated with and/or connected to a member of the conspiracy. Walker testified that he was a custodian of records for his company; that he was trained in understanding call detail records; and that, similar to other cell phone provider companies, his company's records included among other information the identity of cell towers accessed during a call.
As discussed in detail post, district attorney investigator Don Holmes also testified as an expert regarding cell phones including how they operate, cell-site mapping, and record keeping. Like the expert witnesses from the cell phone providers, investigator Holmes testified that when a cell phone call is placed, that call may not access the nearest tower; that instead, cell phone providers utilize the " 'best-server concept' "; that a cell phone continually accesses the quality of a signal from surrounding towers; and that while a phone may recognize more than one tower, it ultimately will connect to the "dominant tower that has the best signal" even if that tower is not the closest to the phone.
Investigator Holmes further testified that various factors weigh in the determination of the best-server tower including whether an obstruction interferes with the radio signal. In San Diego County, investigator Holmes testified that most of the cell towers in "urban areas" are about one to three miles from each other; that in the downtown area, that distance can be "much less"; that in the "rural portions" of the county, the towers "can be up to eight or ten miles apart"; and that ultimately, it just depends on where the call is made.
Investigator Holmes testified regarding the use of call detail records from the various cell phone providers to obtain the address and/or GPS coordinates of one or more towers that were used by a network to connect a call. Investigator Holmes testified that he analyzed cell phone records in the instant case; that he prepared "maps" based on this analysis; that his analysis led to the creation of a 2,284-page document; that he created various "slides" which broke his analysis into 48 "incidents" to "evaluate cell cite activity" for six phones connected to the members of the conspiracy; and that he used the names of each of the conspirators associated with a particular phone in his mapping and also used colors to distinguish between the various phones.
As summarized post, investigator Holmes used the slides to show the timing of communications between, and movement of, the various cell phones affiliated with the conspiracy members—including Venegas—with respect to each count. Like the other experts, investigator Holmes reiterated the movement of the phones between towers was approximate.
Thus, the testimony of Haecherl, Gillis, Walker, and investigator Holmes shows the location of calls placed on cell phones affiliated with the conspiracy was approximate; that there were various factors that went into determining the cell phone tower or cell on that tower that connected incoming and/or outgoing calls; and that these factors included among others capacity; line of sight; buildings; topography; geography; signal strength; the presence or absence of water; and the location of the caller in relation to the tower. We therefore conclude the expert witness testimony about the general location of one or more of the cell phones affiliated with the conspiracy did not create for the jury a " 'misleading aura of scientific infallibility.' " (See Garlinger, supra, 247 Cal.App.4th at p. 1196, quoting Stoll, supra, 49 Cal.3d at p. 1157.)
C. Sufficiency of the Evidence [Counts 1-9, 11-20, 22-24, 26-35, and 37-49]
1. Guiding Principles
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' (People v. Lindberg (2008) 45 Cal.4th 1, 27.)" (People v. Covarrubias (2016) 1 Cal.5th 838, 890 (Covarrubias).)
With these principles in mind, we next determine whether substantial evidence supports Venegas's convictions.
2. Analysis
Count 1:
Victim C.C. testified that on August 15, 2012, at about 2:15 p.m., she was notified that an alarm had been activated at her home located on Sundrop Court in Chula Vista. On inspection, C.C. found that a rock had been thrown through a window located on the side of the house; that someone had entered the home, ransacked it and taken various items including jewelry; and that a pillowcase was missing from a bedroom pillow.
Witness H.L. testified that at the time of the break-in, he lived near the C.C. residence; that on the date of break-in, he heard the C.C. home alarm sound; that when he investigated, he saw a man sitting in the driver's seat and another man in the backseat of what he described as a light blue, 1960's Volkswagen Beetle parked across the street from the C.C. residence; that he saw a third man coming from the direction of the C.C. residence holding a "bag of some sort"; and that this third man then got into the Beetle and the car sped off.
Witness E.D. testified that he too lived near the C.C. residence; that on the date of the burglary, his own home was equipped with a video surveillance system; and that this video showed a "VW bug" parked near the C.C. home.
Montes testified that the C.C. home was the first one burglarized by him, Duron, and Venegas. On questioning about how the conspiracy began, Montes stated that it was Duron who first inquired whether he was interested in making some money; and that a month or two before their first burglary, Duron introduced Montes to Venegas. At some point, the three discussed Montes driving them in his 1959 Volkswagen Beetle to "scout out houses to burglarize." Although Montes did not feel good about his participation in the burglaries, he testified he was then "desperate for money."
Regarding the burglary of the C.C. home, Montes was told to stop at this particular home. According to Montes, after they determined nobody was home, he and Duron kept watch while Venegas entered the home. Montes specifically saw Venegas jump a fence and then, about a minute later, he heard glass breaking and an alarm sounding. About two minutes later, Montes saw Venegas exit the front door carrying a pillowcase full of jewelry.
As Montes drove, Duron and Venegas went through the stolen items. At some point, they stopped and Montes saw Venegas discard all, or nearly all, of the stolen items in a dumpster because Venegas believed the jewelry was costume and thus worthless. As payment for driving them around on this "first day," Venegas gave Montes $150.
Investigator Holmes testified that the cell phone records for this day showed a 15-second call from Antar's phone to Venegas's phone at 12:27 p.m.; that around 2:09 p.m., there were two calls involving Venegas's cell phone that pinged off a cell tower near the C.C. home; that at the same general time, there was a call from Venegas's phone to Montes's phone; and that three minutes later, there was more phone activity between Venegas's and Montes's phones in the same general area. The phone records showed multiple other calls involving the phones of Montes, Venegas, and Aguirre that accessed one or more cell towers in the same "part of town, . . . east of the [C.C.] house."
At 5:03 p.m. that same day, the phone records showed an outgoing call from Venegas's phone to Antar's phone "pinging off of a tower near downtown." Phone records also showed a series of calls between the phones of Venegas and Antar shortly thereafter.
On this record, we conclude substantial evidence supports Venegas's conviction on count 1. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 2:
Victim G.T. testified that her home located on Diamond Drive in Chula Vista was broken into on August 21, 2012; that it was her birthday that day and that she left at about 1:00 p.m. and returned home about 5:00 or 6:00 p.m.; and that when she arrived home, she found clothes from her bedroom drawers scattered on the floor and her jewelry box, which had been full and which included coins she had collected, empty. Also missing was $4,500 in cash she intended to use to pay for new carpeting. As was the case in the C.C. break-in, G.T. found one of her pillowcases missing from a bedroom pillow. Also missing from G.T.'s home was a spare key to a Mercedes that she kept hidden in a drawer in the hall closet. In her daughter's room, G.T. found a screen from a window had been removed; her daughter's clothes also scattered on the floor; and her daughter's laptop and jewelry missing.
About a month after the initial break-in, G.T. returned home one day and found the sliding door and screen to her home open, as was the door leading from the garage to the house. G.T. testified that nothing was missing from the house as a result of this second entry; that she had been driving her Mercedes during both entries; and that in January 2013, she went to the sheriff's station and identified a pair of earrings and a watch that had been taken during the initial break-in.
Montes testified that he recalled Aguirre was with him, Venegas, and Duron on this day; that it was Aguirre who knocked on the front door of the G.T. home; that he parked up the street from the home while he and Aguirre watched Venegas and Duron enter a side gate by the house; and that he specifically recalled they stole a laptop, multiple purses, and jewelry from this house. After this burglary, Montes recalled they drove to Venegas's mother's house, where Venegas lived, to sort through the items. Montes recalled Venegas on this day stated that "Sami" (i.e., Antar) was interested in buying "MacBook" computers.
When asked how they would get money from the stolen items, Montes testified that during the "week and a half" he was participating in the burglaries, about four or five times he drove Venegas and Duron, and sometimes Aguirre, to a jewelry store in downtown San Diego to meet "Sami," where Venegas alone would enter the store with the stolen items and returned with cash. Montes testified neither he nor Duron nor Aguirre entered the jewelry store, which Montes identified as being located inside a brownstone building known as the "Jewelry [sic] Exchange."
According to Montes, before they drove downtown to meet Antar, Venegas "[e]very time" would call or text Antar to let him know they were on the way because they had " 'some stuff to sell. . . .' " Montes testified Venegas used his pockets or a backpack to transport the stolen items into the jewelry store. Montes specifically recalled driving to the Jewelry Exchange on August 21—the same day as the break-in of the G.T. residence—with a stolen MacBook.
Investigator Holmes testified the phone records from this date showed several phone calls and/or text messages beginning at about 2:58 p.m. involving phones affiliated with Montes, Aguirre, and Venegas in the general area of the G.T. residence. At about 4:28 p.m. that day, the records also showed activity between the phones of Antar and Venegas and beginning at about 5:25 p.m., the records showed activity for the phones of Montes, Aguirre, and Venegas in the downtown area, near Antar's store. Finally, at about 7:33 p.m., the records showed an outgoing call from Venegas's phone to Antar's phone.
On this record, we conclude substantial evidence supports Venegas's conviction on count 2. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 3:
A.P. testified that on August 27, 2012, he owned a home located on Galdar Place in Chula Vista; that he typically lived in the home about one week a month; and that at about 1:00 p.m. that day, he received a phone call from the alarm company notifying him the backdoor and a window had been compromised. A.P. testified the house had surveillance cameras that allowed him to view the inside of the home, but no recording equipment. According to A.P., the only things taken from the home were "two sport jerseys" he kept in the closet.
J.S., a neighbor, testified that while taking out the trash that day she saw a light blue "old Volkswagen" pull up on the wrong side of the street and park in front of A.P.'s home. J.S. had never seen the car or its occupants before that day. Next, J.S. saw a female exit the vehicle. According to J.S., she and the female made eye contact and the female in response "stared" her down. At that point, J.S. lost sight of the female, who J.S. surmised was a cleaning lady going to clean the home. About 30 minutes later, J.S. went back outside and noticed the car was gone. J.S. later identified the female from a photographic lineup, who turned out to be Aguirre.
Montes recalled the burglary of this particular home. Montes "believe[d]" that they also may have stolen a car from the garage of this home.
Investigator Holmes testified that phone activity for Aguirre's phone at 11:07 a.m. that morning showed Aguirre's phone accessed a tower "directly south" of the A.P. residence.
On this record, we conclude substantial evidence supports Venegas's conviction on count 3. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 4:
S.T. testified that on August 27, 2012, she lived on Annadale Way in Chula Vista; that about 3:00 p.m. that day, she returned home and found the door to the garage refrigerator open and "some stuff" on the floor; that the screen to the kitchen window had been removed; and that when she walked into her bedroom, she saw it had been ransacked and there were two large kitchen knives on her bed. S.T. immediately went outside and called 911. Once outside, S.T. saw her neighbor, also "frantic[]" and on the phone.
Count 4 of the amended information incorrectly spelled the victim's name.
S.T. testified that on inspection, she found several items missing from her home including multiple pieces of jewelry; a laptop computer; cell phones; a camera; foreign currency; and headsets. A few weeks after the break-in, S.T. went to a sheriff's station and identified some foreign coins and some jewelry that had been taken during the break-in. About a year later, S.T. again went to a sheriff's station and was able to identify additional items taken in the break-in.
Neighbor A.G. testified that when she went to pick up her mail that day, she saw an older light blue Volkswagen parked nearby. A male was sitting in the driver's seat and a female with long hair was sitting in the backseat. A.G. subsequently identified the female—later identified as Aguirre—in a photographic lineup.
Forensic evidence technician Michelle Hefty testified that she was part of a team of law enforcement that responded to the S.T. residence on August 27; that she was able to lift several prints from the sliding glass door in the living room; that the prints were lifted both from the interior and exterior of the door; and that the prints were then impounded. Mary Kay Hunt, a latent print examiner with the Chula Vista Police Department, determined two latent prints taken from the door matched the right thumb of Aguirre.
Montes recalled burglarizing this home (and the home in count 5, discussed post, located on the same street). Montes further recalled Aguirre entered the S.T. residence along with Venegas and Duron.
Aguirre, age 22 at the time of trial, testified that she was charged with 24 counts of residential burglary, and ultimately pleaded guilty to eight counts of aiding and abetting residential burglary; that she was involved in these burglaries between about July and late-November 2012; that her youngest child was fathered by Venegas; and that she agreed to cooperate with law enforcement because she was young, had kids, and felt it was the "right thing to do."
Aguirre estimated that during the July/November time period, at least four or five days "every week" she participated in residential burglaries with Venegas. Aguirre stated that she became involved in the burglaries because she wanted to "hang out" and "be with" Venegas; and that she met Duron through Venegas.
With respect to this particular count, Aguirre said she had been waiting in Montes's car with Montes while Venegas and Duron went into the home. A few minutes later, Venegas called Aguirre on one of her cell phones and asked her to join them because they wanted Aguirre to "squeeze in through a [crack] in the sliding glass door." When Aguirre was unable to do so, Venegas went in through the kitchen window and then opened the door for Aguirre. Once inside, Aguirre saw Venegas looking through drawers for jewelry while Duron went to the closet. Aguirre, who was the only one not wearing gloves, helped Venegas put items in a backpack. Although Aguirre returned to Montes's car, Venegas and Duron went across the street and burglarized the neighbor's home.
Investigator Holmes testified that phone records showed an outgoing call from Venegas's phone to Montes's phones at 12:34 p.m.; an outgoing call involving Aguirre's phone that accessed towers "somewhat close" to the S.T. residence and the T.M. residence (count 5, post); and an incoming call from Aguirre's phone to Venegas's phone at about 1:17 p.m. At 3:08 p.m., a call lasting 30 seconds was placed from Venegas's phone to Antar's phone. That call accessed a tower at the intersection of the 805 and 54 freeways.
On this record, we conclude substantial evidence supports Venegas's conviction on count 4. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 5:
T.M. testified that on August 27, 2012, she and her family were living on Annadale Way; that she left the house that morning at about 10:00 a.m. and returned about 3:00 p.m.; that when she arrived home, she found the front door open and all of their "things . . . thrown across the floor—pictures, papers, items"; that a window in the dining room had been opened and its screen removed; and that a sliding glass door in the living room area also had been opened.
Upstairs, T.M. found her bedroom "ripped apart." Like many other victims of the conspiracy, T.M. found pillowcases missing from bedroom pillows and kitchen knives in her bedroom. Specifically, T.M. testified that there were about seven "steak" knives on her bed; that the bedroom mattresses were flipped over; that her bedroom closet was ripped apart; that the drawers in two bedrooms were emptied; that a fire safe was opened and its contents, including jewelry and coins, were taken; and that items were also taken from the garage including expensive military gear used by her husband.
A few weeks after the break-in, detectives contacted T.M. about property they found in a car (i.e., Montes's Beetle). On inspection, T.M. identified two coin sets belonging to her children and a watch belonging to her husband. T.M. later learned some coins stolen during the break-in had been pawned. T.M. found the coins at the pawnshop and purchased them because of their sentimental value.
Aguirre recalled the burglary of the T.M. home. She testified that Venegas and Duron returned with a "military backpack" and that Venegas talked about stealing "military gadgets" such as "night-vision goggles" from the home. Immediately after this burglary, Aguirre stated they all went "downtown" to the "Jewelers Exchange" so that Venegas could meet with "Sam" (i.e., Antar).
According to Aguirre, while they were all in the car Venegas alone would use his cell phone to contact Antar and let him know they were headed downtown. Aguirre stated that, if Antar responded, they would head downtown after "[a]lmost every single [burglary]," but that only Venegas would go inside and meet with Antar. Aguirre estimated Venegas would spend about 30 to 40 minutes with Antar, and sometimes longer, and then would return with money.
Aguirre testified that Venegas never gave her any money, although he sometimes would pay to fill the gas tank of her car or give her a purse or jewelry they had stolen. Aguirre testified that she never burglarized a home alone and that she was always with Venegas and Duron during the burglaries.
In light of this evidence, and the cell phone evidence discussed ante, in connection with count 4, we conclude substantial evidence supports Venegas's conviction on count 5. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 6:
T.Mo. testified that on August 28, 2012, he lived in a home located on Rue Michelle in Chula Vista; that he left for work at about 8:00 a.m. that morning and when he returned about 3:00 p.m., he found his garage door open and his Mercedes Benz gone; that when he entered the residence, he found each room had been "ransacked"; that all of his wife's jewelry and his watches were missing from their bedroom; and that also missing from the home were cameras and a laptop computer, among other items.
About a week after the break-in, police found T.Mo.'s car in San Ysidro, near the United States and Mexico border. About two months later, T.Mo. was asked to attend a property viewing of items recovered by detectives. T.Mo. testified he identified his wife's ring, which had been taken during the break-in.
Montes testified he recalled the T.Mo. home and recalled they stole a mid-sized Mercedes Benz SUV from the garage. Although he could not recall if Aguirre was with them on this occasion, he did recall being with Duron and Venegas when they burglarized this home.
On this record, we conclude substantial evidence supports Venegas's conviction on count 6. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 7:
B.B. testified that on August 28, 2012, he resided in a home located on Westview Drive in Chula Vista; that at about 4:45 p.m. that day, he was notified by his alarm company that the home alarm had been activated; and that when he returned home, he went around to the back of his house and found a window had been broken and the sliding glass door opened. Once police secured the home, B.B. went inside and found the upstairs bedrooms had been ransacked, like most, if not all, of the other homes burglarized during the conspiracy. Also like other victims, B.B. found a pillowcase missing from a bedroom pillow.
Items taken from the B.B. home included a rosary; watches; a laptop computer; and an urn containing the ashes of a family pet. About a month later, B.B. was contacted by detectives and shown photographs of various items recovered by law enforcement. B.B. was able to identify a dive watch that had been taken during the break-in.
Montes could not recall burglarizing this home. However, neighbor R.H. testified he lived near the B.B. home and, on the day of the break-in, he saw a light blue VW Beetle parked in front of the house, which he found "highly unusual." Inside the car R.H. saw three Hispanic-looking males. R.H.'s wife took down the license plate of the Beetle, which was provided to law enforcement.
A day or two after the B.B. burglary, Chula Vista police pulled over Montes while he was driving his Beetle. Police impounded the car because Montes was driving on a suspended license. A search of the car revealed several watches (only one of which belonged to Montes); a Mercedes Benz car key; foreign coins; a laptop; and jewelry found under and behind the seat. Police also found a store receipt showing Montes had sold some coins.
Montes was arrested on April 11, 2013, and charged with six burglaries. Initially, Montes lied to police about his involvement in the burglaries but as discussed, ante, he later agreed to cooperate with law enforcement.
Cell phone records for August 28, 2012, showed an outgoing call from Venegas's phone to Antar's phone at 10:25 a.m. that lasted two minutes eight seconds. The records further showed an incoming call from Aguirre's phone to Venegas's phone at 4:22 p.m., which accessed a cell tower about a mile away from the B.B. residence, and an outgoing call from Venegas's phone to Antar's phone at 4:50 p.m. that lasted for 42 seconds. At 5:10 p.m., phone records for Montes's phone showed an outgoing call accessed a cell tower near the Jewelers Exchange in downtown San Diego.
On this record, we conclude substantial evidence supports Venegas's conviction on count 7. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 8:
E.L. testified that on September 12, 2012, he was residing in a home on Santa Maria Court in Chula Vista. At about 3:00 p.m. that day as E.L. was leaving in his car, he saw two Hispanic males near the front of his home. E.L. estimated the males were in their late 20's. E.L. returned about an hour later, at the same time his wife separately arrived home. When E.L.'s wife went into the house, she found muddy shoe prints in the dining room area and on the stairs, which she initially blamed on E.L. On investigation, E.L. saw the blinds on a window in the dining room had been "pushed out," shards of glass were lying on a table, and a "big, solid rock" also was lying on the table.
Inside the master bedroom, E.L. found everything was "tossed and turned." E.L. testified that "hundreds of pieces" of his wife's jewelry they kept hidden in one of their dressers was stolen. Also stolen was a jewelry box in which E.L. kept watches; bracelets; cufflinks; and "military paraphernalia." E.L. noticed a pillowcase was missing from a bedroom pillow.
Aguirre was shown some text messages between her, Venegas, and Duron dated September 12, 2012. In one message, Aguirre informed Venegas and Duron she had just knocked on someone's door. In response, Duron instructed Aguirre, " '[address] knock on that one, too.' "
Per investigator Holmes, phone records showed an outgoing call on Venegas's phone at 3:37 p.m. that accessed a cell tower near the E.L. residence on Santa Maria Court.
On this record, we conclude substantial evidence supports Venegas's conviction on count 8. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 9:
V.A. testified that on September 19, 2012, he was residing in a home located on Via Hacienda in Chula Vista; that he left his home at about 1:00 p.m. to pick up his granddaughter from school; that as he was dropping off his granddaughter at about 3:30 p.m., his daughter informed him the alarm company had called and advised his house alarm had been activated; and that he immediately drove home, opened the front door, and saw "glass scattered" everywhere, as if there had been an "explosion." Like many of the homes burglarized during the conspiracy, V.A. saw a sliding glass door in the family room had been shattered with a brick, which was lying on the floor.
In the dining room area, V.A. found papers he kept in a desk scattered all over the floor. Inside the master bedroom, V.A. discovered all of his wife's jewelry had been stolen. Also stolen were watches; a souvenir knife collection; a $2 bill from Singapore; and his red Acura, which he kept in the front driveway. Police recovered the Acura about three days after the break-in. V.A. noted the sound system in the car had been damaged, as had one of the seats.
In summer 2013, V.A. went to a sheriff's station to view items recovered by law enforcement. V.A. was able to identify the $2 bill and one of the knives he kept in his nightstand.
Aguirre was shown a text message dated September 19, 2012, in which she wrote Venegas, " 'where are you[?]' " Aguirre testified she sometimes would message or call Venegas when he was taking too much time inside a house or to warn him about someone coming or something being amiss.
Cell phone records showed a call that day from Antar's phone to Venegas's phone that lasted one minute 34 seconds and that accessed a tower in Spring Valley, near the 94 freeway. At about 2:37 p.m., phone records showed an outgoing call from Aguirre's phone that accessed a cell tower about half a mile from the V.A. residence. The phone records further showed an incoming call from Antar's phone to Venegas's phone at 3:21 p.m. that lasted 59 seconds and accessed a tower about a quarter of a mile from the V.A. residence. At 4:47 p.m., Aguirre's phone received an incoming call that accessed a tower near the Jewelers Exchange in downtown San Diego.
On this record, we conclude there is more than sufficient evidence to support Venegas's conviction on count 9. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 11:
L.L. testified that on October 10, 2012, she resided in a home located on Tim Street in Bonita; that she left the residence at about 10:00 a.m. and returned a few hours later; that on returning, she found the front door open and papers on the stairway; that when she went into the kitchen, she found the screen covering the window had been cut; and that when she went to the master bedroom, she found "everything [was] scattered."
On investigation, L.L. testified her jewelry and her husband's jewelry was stolen, as was the "pink slip" and a car key to her Mercedes Benz. Like many other victims of the burglary conspiracy, L.L. found kitchen knives on a table next to the bed and on the bed itself and a pillowcase missing from a bedroom pillow.
Aguirre recalled the L.L. home from its long driveway. Aguirre further recalled Venegas and Duron going into this home and returning with "a lot of gold" including "chains, necklaces, rings [and] bracelets." Aguirre specifically recalled Venegas bragging about how much gold they had stolen from this particular home, noting they had hit the "jackpot." A photograph from Aguirre's cell phone taken at 2:23 p.m. on the same day of the L.L. burglary shows a person with a tattoo wearing three gold chains ostensibly taken from this home.
Aguirre testified there was a "gap" between the end of September and the beginning of October when they were not burglarizing homes because she and Venegas had a falling out after Aguirre found out she was pregnant with his child. She further testified that, when she was arrested on November 28, 2012, after a police chase, police found a "pink slip" in Aguirre's car that had been stolen from the L.L. home.
Cell phone records showed an outgoing call from Venegas's phone to Antar's phone at 2:17 p.m. that lasted one minute 25 seconds and that connected to a cell tower a mile west of the L.L. residence. At about 2:56 p.m., Aguirre received a call on one of her cell phones that accessed a tower in downtown San Diego.
On this record, we conclude substantial evidence supports Venegas's conviction on count 11. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 12:
C.S. testified that on October 16, 2012, she lived in a home located on Camino Elevado on the border of Chula Vista and Bonita; that when she returned home from work at about 4:30 p.m. that day, she opened her garage door and found a bicycle displaced on the floor; that she opened her door to the family room and saw a "big mess"; that an aluminum block she kept outside had been thrown through a window in her home office, with glass scattered on the floor; that in several of the rooms, items were taken out of drawers and thrown onto the floors; and that many precious heirlooms that had been in her family for generations had been stolen.
C.S. estimated that she lost close to $50,000 in jewelry and foreign currency. Also taken was a pillowcase from a bedroom pillow. After the break-in, C.S. went to a sheriff's station on at least two occasions and also viewed pictures at least once in an attempt to identify some of the stolen items. C.S. identified a gold bangle bracelet; some crystal; two plates; a specially ordered thumb drive; and what she described as some "junkie stuff." According to C.S., the items recovered and returned to her were of minimal value in contrast to the items that were stolen.
Cell phone records showed phone activity between Venegas's and Duron's phones at 2:44 p.m. near the C.S. residence; activity between Venegas's and Antar's phones at 4:31 p.m.; and an incoming call to Duron's phone at 4:44 p.m. that accessed a cell tower in downtown San Diego, near the Jewelers Exchange.
On this record, we conclude there is more than sufficient evidence to support Venegas's conviction on count 12. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 13:
Chula Vista Police Officer Carlos Marques testified that he was on patrol in the evening of October 17, 2012, when he was dispatched to a home on Huerto Place in Chula Vista; that Officer Marques contacted the homeowner, A.M.; and that once inside, it appeared the home had been "ransacked." On the north end of the house, Officer Marques found a bedroom window had been smashed by a "roof tile" that was lying on the floor.
Cell phone records for this date showed an incoming call from Antar's phone to Venegas's phone at 1:27 p.m.; and phone activity between Aguirre's phone and Venegas's phone at 2:36 p.m. that accessed a cell phone tower about a mile south of the A.M. residence. At 3:40 p.m., there was an incoming call from Antar's phone to Venegas's phone; at 4:14 p.m. there was a call lasting 33 seconds from Venegas's phone to Antar's phone; and at 4:43 p.m. there was an outgoing call from Venegas's phone that accessed a cell tower in downtown San Diego, near the Jewelers Exchange.
On this record, we conclude substantial evidence supports Venegas's conviction on count 13. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 14:
Retired San Diego Police Officer D.H. testified that on October 19, 2012, he was living in a home located on Encantada Court in Chula Vista; that after he arrived home from work, someone rang the doorbell over and over again for about 20 to 30 seconds, as if the person was in "panic mode"; that when he peered out the window, he saw a white Cadillac parked in his driveway that he did not recognize; and that he then went to the front door and saw a Hispanic female at the door that he also did not recognize. As a result, D.H. neither answered the door nor alerted the female to the fact he was home. A short time later, D.H. saw the white Cadillac leave the cul-de-sac.
About 10 minutes later, D.H. heard a loud "banging" noise at the back of his home. D.H. testified that when he had come home, he had opened a glass sliding door but had purposely kept the screen closed; that he saw the screen door was now open about a foot; and that he then went outside but saw nobody. About an hour later, a neighbor contacted D.H. and informed him that he had been burglarized. D.H. went to the neighbor's house and saw "[e]verything was kind of messed up and out of place."
Aguirre testified she drove to the D.H. home in her pearl white Cadillac, which she had purchased in mid-August 2012. At Venegas's request, she rang the doorbell to this home and then reported back that nobody had answered. When Duron returned to the car, he told Aguirre as soon as he had opened the backdoor to this home he saw someone inside, walking down the stairs.
Cell phone records for this count and for count 15, involving a neighbor's home, showed a series of outgoing calls from Duron's phone beginning at 3:48 p.m. that accessed a cell tower about a "quarter mile or less" from the two homes.
On this record, we conclude substantial evidence supports Venegas's conviction of attempted first degree burglary as charged in count 14. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 15:
J.C. testified that on October 19, 2012, he resided in a home located on Encantada Court in Chula Vista; that on this day, he left the home at about 1:30 and returned about 4:00 p.m.; that as he went inside, he found bags of new clothing by the front door, which previously had been upstairs; that there was a similar bag on top of the car parked in the garage; that the hood to the car was open, as was the driver's side door; and that one of the screens to a window in the back of the house had been removed and the window opened. Before the break-in, J.C. estimated he and his wife had about 12 such bags of clothing. After the break-in, his wife found only two such bags upstairs.
Besides bags of clothes, items taken from the J.C. home included a bracelet that was in his son's bedroom; his wife's gold necklace; other jewelry including a rosary; and $560 in cash among other items. Also missing from the home was a two-month-old German Shepherd puppy.
Aguirre testified when Venegas returned from the J.C. home he stated it was full of new clothes and not worth the money to carry all of them out to the car. As they were driving away, Aguirre recalled seeing a little German Shepard puppy running toward them. Aguirre stopped the car and Duron, in response, called out to the dog. When the dog approached the car, Duron picked it up and they drove off with the dog.
A photograph taken from Antar's computer discovered during the December 3, 2013 search of his office showed a rosary sitting atop a laptop that matched Antar's computer. The photograph was taken at 5:25 p.m. on October 19, 2012—the same day the J.C. home was burglarized.
On this record, including the cell phone evidence discussed ante, in connection with count 14, we conclude substantial evidence supports Venegas's conviction on count 15. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 16:
R.R. testified that on October 23, 2012, she was living at a home located on Choc Cliff Drive in Bonita; that she left the house at about 10:30 a.m. and went to visit her husband in the hospital; and that when she returned with her daughter at about 9:00 p.m., they found the lights on in the garage and the door to the house unlocked. On entering the home, R.R. found her husband's old wallet on the floor. R.R. also found a screwdriver had been left on a table by the stairs. When she went to the back of the house, she found the French doors leading to the patio had been "pushed in" and "broken."
Inside the master bedroom, R.R. found all of her belongings "thrown on the floor." Missing from the bedroom was a pillowcase from one of the bedroom pillows, all of her jewelry, and a small safe that contained important papers.
Aguirre recalled driving to the R.R. home and stealing the safe. She further recalled they went to Venegas's mom's house afterwards, and they used a drill to open the safe.
Cell phone records showed an outgoing call at 1:31 p.m. from Venegas's phone to one of Aguirre's phones that connected to a cell tower about a mile south of the R.R. residence. The records further showed an incoming call from Antar's phone to Venegas's phone at 3:15 p.m. that lasted 43 seconds, which accessed a tower near Venegas's residence, and an incoming call to Duron's phone at 3:53 p.m. that accessed a cell tower in downtown San Diego, near the Jewelers Exchange.
On this record, we conclude substantial evidence supports Venegas's conviction on count 16. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 17:
G.L. testified that on October 24, 2012, he resided in a home located on Oakpoint Avenue in Chula Vista; that when he returned from work that day at about 5:00 p.m., he found his sliding glass door in the back of the house "totally shattered"; that on top of the kitchen table was a rock from the backyard that had been used to break the glass; and that the inside of his house was "[a]ll ransacked." In particular, G.L. stated the dresser drawers in the bedroom were "torn out," his clothes were scattered across the floor, and the mattress was "tossed over." Missing from the home were signed baseballs G.L. collected; jewelry; and a laptop computer. A few months after the break-in, G.L. went to a sheriff's station but could not identify any items taken from his home. At some later point, he was shown photographs that included some of the signed baseballs that had been stolen.
Aguirre recalled the burglary of the G.L. home from the "old baseballs" that had "signatures" on them.
Cell phone records showed an outgoing call at 2:45 p.m. from one of Aguirre's phones that accessed a cell tower about a mile and a quarter from the G.L. residence. At 2:51 p.m., there was an incoming call to Venegas's phone from Antar's phone that lasted one minute 23 seconds, which accessed a tower about a mile from Venegas's residence.
On this record, we conclude substantial evidence supports Venegas's conviction on count 17. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 18:
P.F. testified that on October 25, 2012, she resided in a home on Kent Street in Chula Vista; that as she approached home at about 7:45 p.m., she saw the garage door and the door leading to the inside of the house open; and that she then noticed her parents' car, which had been parked in the garage, was gone. P.F. noted the mailbox in the front of the house was "totally off the bolts on the sidewalk, it was scraped on the side, and was pushed over" near some bushes. P.F. immediately called 911.
From the outside, P.F. saw a screen missing from a window in the master bedroom. After the home was secured, she went inside and found a scrape on the wall in the hallway and her parents' room "ransacked." On the floor in her parents' room, P.F. saw a blue-lined gun case had been opened, with the gun missing.
P.F.'s father, A.F., testified that his daughter lived at their family home; that he owned a commemorative weapon, which he kept in a blue-lined gun case; that the car taken from the family home was recovered the same day as the break-in; that a handicap placard he kept inside the car was missing when the car was recovered; that also taken from the house were three firearms; $4,000 in cash; a Rolex watch; and myriad "Marine Corps commemorative coins."
Aguirre recalled the burglary of the P.F. home. Aguirre drove Venegas and Duron to this home in her Cadillac. Items subsequently recovered from Aguirre's car were traced back to the P.F. burglary.
Investigator Holmes testified that cell phone records from October 25 showed an incoming call at 10:29 a.m. from Antar's phone to Venegas's phone that lasted one minute 27 seconds and that accessed a tower at the junction of the 54 and 125 freeways. At 3:32 p.m. that same day, phone records showed an outgoing call from Duron's phone that connected to a cell phone tower about three-quarters of a mile south of the P.F. residence. Beginning at 4:58 p.m., the records showed three incoming calls in rapid succession to Venegas's phone that accessed a cell tower in downtown San Diego, near the Jewelers Exchange.
A photograph of a shotgun with a United States Customs logo taken on October 25, 2012—the same day as the burglary of the P.F. residence—was recovered on Antar's computer. The photograph was taken with a smartphone and the GPS coordinates showed it was snapped about a mile from Kent Street, where the P.F. home was located. Also found on Antar's computer was a photograph of a gun with a "US Customs Special Agent label." Like the first photograph, this second photograph was taken on October 25. The GPS coordinates of the second photograph showed it was snapped in the same general area as the first photograph, but it appeared that the person who took the photograph was moving in a westbound direction.
Another picture of a "black and white design" was also found on Antar's computer and was taken at 4:18 p.m. the same day the P.F. home was burglarized. Like the other two photographs, this third photograph was snapped in the same general area but showed further westbound movement by its taker.
On this record, we conclude substantial evidence supports Venegas's conviction on count 18. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 19:
A.A. testified that she resided in a home located on Wheeling Lane in Bonita on October 31, 2012; that when she came home at around 2:30 p.m., she found the "whole house" had been "ransacked"; that drawers "were pulled out, clothes [were] everywhere," and items that had been on the cabinets "were knocked down, like literally everything was everywhere"; that a diamond ring and some costume jewelry were taken; and that the door to her parents' room, which was kept locked, had been broken. Inside her parents' room, A.A. found two large butcher knives on the floor.
A.A.'s mother, M.A., confirmed that the family home was broken into on October 31; that her daughter A.A. and her own mother were the first to discover the break-in; that on inspection, M.A. found all her jewelry had been stolen, including her wedding ring, a black pearl necklace, and a gold chain necklace; and that some expensive purses and $400 in cash were also missing. M.A. stated at some point after the break-in, they went to a sheriff's station to view items recovered by police. She identified a single black pearl earring belonging to her.
Cell phone records from October 31, 2012, showed an outgoing call from one of Aguirre's phones at 1:44 p.m. that accessed a cell tower less than a quarter-mile west of the A.A. residence. At 2:22 p.m., a call was placed from Venegas's phone to Antar's phone that listed 38 seconds and accessed a cell tower about a mile and a quarter from the A.A. home. Beginning at 3:07 p.m., there were a series of calls involving Venegas's phone that accessed a tower in downtown San Diego, close to the Jewelers Exchange.
On this record, we conclude substantial evidence supports Venegas's conviction on count 19 for the burglary of the A.A. residence. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 20:
S.K. testified that on November 1, 2012, she resided in a home located on Redlands Place in Bonita; that when she arrived home that day, a neighbor informed her that her house had been burglarized; that when she entered the home, she found a back bedroom patio door had been smashed by a backyard garden ornament; and that her bedroom had been "completely trashed." Items stolen from the home included a "great deal of jewelry" and a tablet. S.K. was invited by detectives to a property viewing both in 2013 and in 2014. At the first viewing in 2013, she was unable to identify any of her missing property. At the second viewing in 2014, she identified a silver necklace and bracelet, a few pieces of costume jewelry, and a turquoise silver ring.
Phone records for November 1, 2012, showed a phone call at 8:43 a.m. from Antar's phone to Venegas's phone; an outgoing call from Venegas's phone to Antar's phone at 11:02 a.m. that lasted one minute 22 seconds; and an outgoing call from Venegas's phone to Fults's phone shortly thereafter, both of which accessed the same cell tower near the 125 and 54 freeways. At 2:51 p.m., Venegas's phone received an incoming call that connected to a tower about a quarter-mile west of the S.K. residence. Beginning at 3:10 p.m., there were three outgoing calls from Venegas's phone to Antar's phone that were made about a quarter-mile from the Jewelers Exchange.
On this record, we conclude substantial evidence supports Venegas's conviction on count 20. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 22
C.M. testified that on November 2, 2012, she was living in a home located on Southview Circle in Chula Vista; that on that day, she was home sick; that while her children were napping, she heard the doorbell ring; that because she was not feeling well, she ignored it until someone started "pounding" on the front door; that because she did not want her children awakened, she went downstairs, peeked outside, and saw a female knocking on the door; that the female was petite, in her early 20's, had dark hair and a large, "very elaborate," "colorful" tattoo on her arm; and that when she opened the door, the female asked to speak to a person C.M. did not recognize.
Shortly after C.M. returned upstairs, she heard a "really loud noise." She went back downstairs, looked out the window, but saw nothing. Later that afternoon, C.M. learned there had been a burglary at her neighbor's house, the J.S.'s (count 23, discussed post). A few months after this incident, C.M. was contacted by detectives. After being admonished, C.M. was shown a photographic lineup and identified photograph No. 2 as the female who had banged on her door on November 2. The female was Aguirre.
Cell phone records showed Venegas's phone received at 2:26 p.m. that day an incoming call that accessed a cell tower about a mile from the C.M. and J.S. residences. At 3:58 p.m., there was an outgoing call from Venegas's phone to Antar's phone that lasted 33 seconds; and at 4:15 p.m., there was an incoming call from Fults's phone to Venegas's phone that accessed a cell tower about a quarter of a mile from the Jewelers Exchange.
On this record, we conclude substantial evidence supports Venegas's conviction for attempted first degree burglary as charged in count 22. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 23:
J.S. testified he lived in a home located on Southview Circle in Chula Vista on November 2, 2012; that shortly after 2:00 p.m., he and his wife left their home and headed out of town; and that about 20 minutes later as they were driving, the alarm company called and informed him various "sensors" had been activated in the home. As a result, they returned home and found police cars parked in front of their house. After deactivating the alarm, J.S. saw the back sliding glass door had been shattered. J.S. also noticed a fresh "oil stain" in the driveway. On inspection, J.S. found a "dent" in a patio chair, which he surmised had been used to smash the glass door.
Inside the master bedroom, J.S. found all the clothes pulled out of drawers; his wife's jewelry boxes emptied; and a duffle bag missing.
J.S.'s wife, S.S., testified "gold shells," bracelets and various other items of jewelry were stolen during the break-in; that at some later point, perhaps January 2013, a detective contacted her and showed her some pictures of items that had been recovered in a car; and that from these pictures, she identified bracelets, a couple of rings, and a medallion that belonged to her.
On this record, we conclude substantial evidence—including the cell phone records discussed ante, in connection with count 22—supports Venegas's conviction on count 23. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 24:
K.D. testified she lived in a home located on Bonita Woods Drive in Bonita on November 5, 2012; that when she came home from church at 1:30 p.m., she found all of her drawers in the exercise room and their contents "dumped out" on the floor; that someone had removed the screen from, and entered the home through, a window in the family office; and that "every piece of jewelry" was taken, including items belonging to her husband, and jewelry that belonged to her biological mother.
In summer 2013, and again in about January 2014, K.D. and her husband D.D. went to a sheriff's station and identified "quite a few things" that had been stolen, including an earring; a gold necklace "without the solitaire"; another necklace; multiple watches; two "[t]ooth fairy" "shaped containers"; a coin from the 1500's; various bracelets and pendants; and company pins.
D.D. testified he was at a doctor's appointment at the time of the November 5 break-in; that he and his wife twice went to property viewings; that he was able to recognize a service pin from his company; a Spanish coin that was missing its golden bezel; a class ring; and some watches that belonged to his grandfathers.
Aguirre recalled this home from its gate. Aguirre drove Venegas and Duron to the home. After she knocked on the front door and nobody answered, Venegas and Duron entered the home.
Cell phone evidence for November 5, 2012, showed an incoming call to Venegas's phone from Antar's phone at 12:11 p.m. that lasted one minute 22 seconds; and an incoming call to Fults's phone at 1:54 p.m. that accessed a cell tower about a quarter of a mile away from the K.D. residence. At 2:13 p.m., there was a call lasting 44 seconds from Venegas's phone to Antar's phone, and at 2:42 p.m., an outgoing call from Duron's phone that accessed a tower about a quarter-mile northeast of the Jewelers Exchange.
A photograph dated November 5, 2012—the same day the K.D. home was burglarized—taken by a smartphone was recovered from Antar's computer. This photograph showed "an assortment of jewelry." Another photograph from this same date also found on Antar's computer showed a "plastic bag of assorted and loose jewelry." When this photograph was compared side-by-side with a photograph of Venegas's hand, which was tattooed with " 'Paulina' and 'Cash Only,' " it appeared there were similarities with respect to the "loop" in the " 'y' " in "Only" and " 'h' " in "Cash."
Based on this evidence, we conclude Venegas was properly convicted on count 24. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 26:
J.B. testified he resided in a home located on Lavade Lane in Bonita on November 8, 2012; that when he arrived home from work at about 4:00 p.m., he entered through the front door and found the contents from the front closet on the floor and the living room television set missing; that many items that had been in drawers had been pulled out and thrown on the floor, including in the kitchen and in the bedrooms; and that when he went into the garage, he found his truck, which had "two amps, three speakers, in the back," had been stolen.
Upstairs, J.B. found his wife's jewelry and a large, flat screen television missing. Like many other victims of the burglary conspiracy, J.B. found kitchen knives in areas that had been searched and ransacked. Also missing from the house was his wallet; his wife's tablet; and a .40-caliber firearm.
Aguirre testified extensively about the burglary of the J.B. home. She recalled driving Venegas and Duron to this home and both of them going inside. Sometime later as she waited her in Cadillac, Aguirre saw the garage door to the home open and Venegas and Duron leave in a vehicle. Aguirre saw there was a flat screen television inside the stolen vehicle.
Aguirre followed the stolen vehicle in her Cadillac. At some point, they stopped in the Fashion Valley area in front of a white house. According to Aguirre, Venegas then told her they were stopped at "Sam's" house. Aguirre testified that she saw Antar but did not talk to him; that this was the second time she had seen him; and that the first time she saw Antar was when he was exiting the Jewelers Exchange as she, Venegas, and Duron were driving away. Aguirre identified Antar in court.
Aguirre recalled that shortly before the tandem drove to Antar's home, they stopped "somewhere near downtown" San Diego. It was then that Aguirre looked in the back of the stolen vehicle and saw it contained an extensive stereo system. During this short stop, Venegas and Duron transferred the flat screen television stolen from the J.B. residence into the back of Aguirre's car. Aguirre also heard Venegas and Duron talk about "stripping" down the stolen vehicle. Aguirre recalled this burglary involved a "military home" based on various stickers or decals on the stolen vehicle.
Cell phone records for November 8, 2012, showed two incoming calls from Antar's phone to Venegas's phone at 11:03 a.m. and again at 12:24 p.m.; an outgoing call from Venegas's phone to Antar's phone at 12:42 p.m. lasting one minute three seconds; and an outgoing call from Venegas's phone to Fults's phone at 2:34 p.m. that accessed a tower about a mile west of the J.B. residence.
Phone records further showed an outgoing call from Venegas's phone to Antar's phone at 2:50 p.m. lasting one minute 39 seconds, which accessed a cell tower about a mile west of the J.B. residence. Beginning at 3:27 p.m., the records showed a series of calls involving the phones of Venegas and Antar, including two calls at 4:08 p.m., another call at 4:23 p.m. lasting one minute 50 seconds, and two more calls at 4:49 p.m., one of which lasted 51 seconds. At 4:54 p.m., there was an outgoing call from Venegas's phone to Antar's phone that accessed a cell tower about a quarter-mile from the Jewelers Exchange.
In addition, Antar's computer included several photographs taken by an iPhone on November 8, 2012—the same day the J.B. residence was burglarized—of a flat screen television. A forensic analysis of Antar's computer showed someone had searched the Internet at about 4:15 p.m. that same day concerning the same model of flat screen television shown in the photographs. Also found on Antar's computer were photographs of an equalizer and speaker equipment. Those photographs also were taken by an iPhone and were dated November 9, the day after the J.B. burglary and the theft of the vehicle containing extensive stereo equipment.
On this record, we conclude there is more than sufficient evidence to support Venegas's conviction on count 26. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 27:
E.M. testified that on November 13, 2012, she resided in a home located on Forester Lane in Chula Vista; that she left home around 8:00 a.m. and returned about 1:00 p.m. after bagging groceries for the poor; that on entering her cul-de-sac, she saw for the first time a light-colored Cadillac parked in front of a neighbor's house; and that inside the Cadillac was a female with long dark hair sitting in the driver's seat and a male sitting next to the female.
Once inside the residence, E.M. noticed the screen to the sliding glass door had been opened and her two indoor cats, who normally greeted her on arrival, were "nowhere to be found." As she opened the sliding glass door, E.M. heard a sound coming from the laundry room area. Upon investigation, she found the pet door on the laundry room door open about five inches. Panicked, E.M. also saw the door from the laundry room, which led outside, ajar.
Inside the master bedroom, E.M. found items scattered on the floor. She found her jewelry box almost completely empty save for a pair or two of "cheap earrings." Also missing were her gym bag; money; and tie clips among other items. E.M. found a knife from the kitchen on a counter near the master bathroom and another knife on the floor, underneath clothing that had been pulled out of the walk-in closet.
Phone records for this count and counts 28-31, post, showed a series of calls that morning between Fults's and Venegas's phones and later, between Venegas's and Antar's phones, including a call involving the latter that lasted one minute six seconds. Phone records further showed an incoming call from Venegas's phone to one of Aguirre's phones at 12:38 p.m. that accessed a tower within a few hundred yards of the J.M. home (count 30, ante); another series of calls about three-quarters of a mile from the C.D. and R.S. residences (counts 28 and 29, respectively); and a call made at 4:01 p.m. from Venegas's phone to Antar's phone that lasted 54 seconds and that accessed a cell tower about a quarter-mile east of the Jewelers Exchange.
Based on this record, we conclude substantial evidence supports Venegas's conviction on count 27. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 28:
C.D. testified that she resided in a home located on Bonita View Drive in Bonita on November 13, 2012; that after being picked up at work by her husband, they approached their home and saw a white Cadillac parked next to their driveway; and that C.D. immediately became concerned because a female with long hair was sitting in the driver's seat and the female appeared to be nervous and "shaking." According to C.D., as soon as she and her husband drove up, the Cadillac sped off.
Once inside the home, C.D. found items littered on her bedroom floor. Items taken from the house included "a lot of jewelry" including some belonging to her mother, a Rolex watch, and a graduation ring, as well as multiple purses and clothes.
About three days after the break-in, C.D. met with detectives. Using a photographic lineup, C.D. identified the female she had seen "shaking" in the Cadillac. The female was Aguirre. C.D. also identified the white Cadillac in another photograph. C.D. testified she went to a property viewing in 2013, but was unable to identify any items that had been stolen from her home.
Aguirre testified that she recalled driving Venegas and Duron to this home in her Cadillac; and that they went inside while she waited in the car.
On this record, we conclude substantial evidence—including the cell phone evidence discussed ante, in count 27—supports Venegas's conviction on count 28. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 29:
R.S. testified that his mother, M., resided at a home located on Bonita View Drive in Bonita on November 13, 2012; that on this day, R.S. drove his mother home and when he opened the front door at about 6:30 p.m. he immediately felt a "draft"; that on inspection, he found the sliding glass door in the dining room open; that when he went into his niece's room, he saw her things had been pulled out of drawers and "thrown all over the floor"; that he found his mother's bedroom in the same condition as his niece's bedroom; that his mother was missing jewelry; and that while they waited for police to arrive, they went outside and discovered the neighbor's house directly across the street (i.e., count 28) also had been burglarized.
Aguirre recalled the R.S. home. She testified she knocked at the front door. When nobody answered, Venegas and Duron went inside and, according to Aguirre, returned with "bags" and purses. As Venegas and Duron were getting into Aguirre's car, the neighbors who lived across the street came home. According to Aguirre, Venegas instructed Aguirre to drive off.
On this record, we conclude substantial evidence—including the cell phone evidence discussed ante, in count 27—supports Venegas's conviction on count 29. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 30:
J.M. testified he resided at a home on Paseo Della Vista in Bonita on November 13, 2012; that he and his wife rented a portion of the home to J.St. and J.St.'s wife; that when J.M. returned home midday and went upstairs, he found the door to J.St.'s room at the end of the hallway had been broken; and that when he went into his wife's bedroom, he saw her things had been thrown on the floor and two knives had been left on the bed. J.M. testified two of his watches were stolen.
J.St. testified he and his wife were living in the J.M. residence on the day of the break-in; that their entrance was separate from the J.M. entrance; that their entire unit had been "totally ransacked"; and that among the items taken from their unit was a $4,000 shotgun that was a collector's item.
Aguirre recalled burglarizing the J.M./J.St. residence. She testified that she went to the front door and knocked, but that nobody answered. Venegas and Duron next entered and were inside for about 30 minutes. As they were leaving the home, the owner arrived. Aguirre in response drove her Cadillac down a grassy hill and picked up Venegas and Duron, who had fled down the hill. Aguirre recalled they stole an "antique shotgun" from this home.
On this record, we conclude substantial evidence—including the cell phone evidence discussed ante in count 27—supports Venegas's conviction on count 30 in connection with the burglary of the J.M./J.St. residence. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 31:
N.L. testified she resided in a home located on Snaffle Bit Place in Bonita on November 13, 2012; that she left home at about 2:15 p.m. to pick up her children at school and returned at about 6:00 p.m.; and that when she pulled in the garage, she noticed cabinet doors open, a car seat from her husband's truck on the garage floor, and the door to her husband's truck open. On inspection, N.L. saw some boxes in the bed of the truck, which had been full of sports memorabilia, open and their contents disturbed.
Scared, N.L. waited for her husband to arrive before going inside the house. Once inside, they saw the kitchen window wide open and its screen removed. Missing from downstairs was a laptop computer. Upstairs, they found the master bedroom had been "completely torn apart." Among items taken from the upstairs were jewelry, including wedding rings and wedding bands; her daughter's iPod; and a backpack. As was the case in many of the homes burglarized during the conspiracy, N.L. found a kitchen knife on the bedroom floor, which had been searched during the break-in.
From the foregoing, we conclude there is ample evidence in the record to support Venegas's conviction on count 31. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 32:
D.C. testified that he resided in a home located on Sprinter Lane in Bonita on November 13, 2012; that at about 2:50 p.m. that day, he received a call from his alarm company that someone was inside the house; and that as a result of this "emergency," he went home and found the screen covering the master bathroom window removed and the window, which he kept "[c]losed at all times," open.
After police arrived and cleared the home, D.C. went inside and like many other victims, found it had been "ransacked." In fact, D.C. testified the inside of the house looked "like a tornado went through [it]." Items stolen from the home included a laptop computer; jewelry; and a pair of glasses.
Aguirre recalled this home from its gated doorway.
We conclude there is ample evidence in the record to support Venegas's conviction on count 32. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 33:
M.J. testified he was residing in a home located at Rio Vista Lane in Bonita on November 15, 2012; that when he returned home from work that day at about 4:50 p.m., he noticed the front door was unlocked; that when he went through the front door, he heard a "crunching" sound under his feet; and that when he turned the light on, he saw the sliding glass door near the kitchen had been shattered and learned he was walking on broken glass. On investigation, M.J. found a crowbar on his bed. On the floor of the bedroom he also found a shovel. Items taken from the house included his wife's 14-karat gold wedding band; an antique wedding band; and an iPad.
Aguirre recalled this home from the trees and its garage. Aguirre stated Venegas and Duron entered this house while she kept watch in her Cadillac.
Cell phone records from this date showed cell phone activity involving Venegas's and Duron's phone about a mile south of the M.J. residence.
On this record, we conclude substantial evidence supports Venegas's conviction on count 33. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 34:
O.T. testified that she and her family resided in a home located on Wheeling Lane in Bonita on November 15, 2012; that at about 1:00 p.m., she received a phone call from the alarm company informing her that the home alarm had been activated and that police had been dispatched; and that she arrived home about 15 minutes later. After police cleared the home, O.T. went inside and found the sliding glass door to a bedroom had been smashed with an object from the garden. Items missing from the house included a man's gold watch; at least 15 pairs of earrings including some that were gold; and about $2,000 in cash that was in a briefcase, which also was taken. In January 2014, O.T. went to a sheriff's station and identified the stolen briefcase (without the money).
Aguirre recalled knocking at the front door of this house, returning to the car, and Venegas and Duron going inside as she kept watch.
Phone records for this date showed cell phone activity involving Venegas's and Duron's phones about a mile and a half south of the O.T. residence and later, activity from Venegas's phone about a quarter-mile from the Jewelers Exchange.
On this record, we conclude substantial evidence supports Venegas's conviction on count 34. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 35:
K.N. testified that she and her family were residing in a home located on Bronco Place in Bonita on November 28, 2012; that at about 9:30 a.m., a neighbor called and informed K.N. her house alarm was sounding; that when K.N. arrived home with her husband at about 10:00 a.m., she was met by police; and that when they went inside, they found a rock on the floor of the master bedroom and the sliding glass door smashed. K.N. described the bedroom as being in disarray, as clothes were thrown on the floor and drawers and a jewelry box were opened and emptied. Items taken from the home included jewelry; a suitcase; a leather bag; and a small box that had checks and other items inside.
Aguirre testified that, as she waited in her Cadillac in front of this home, she saw a neighbor watching her as he watered his lawn. Aguirre heard an alarm sound and called Duron and Venegas, neither of whom answered. Concerned they would be caught, Aguirre drove her Cadillac about three or four houses away, out of sight from the neighbor. At some point, another neighbor came outside and, according to Aguirre, "actually chased [Duron] and [Venegas]" down the street. Aguirre then received a phone call from Venegas instructing her to unlock the car doors. She then saw Venegas and Duron climb out of the backyard of a home about two homes down from the K.N. home. Aguirre picked them up and they sped off down some "back streets" to avoid detection.
As she drove, Aguirre saw a police car traveling in the opposite direction toward them. When the police car made a U-turn and began following behind the Cadillac, Venegas instructed Aguirre not to stop. Aguirre entered a freeway and drove to an area near Southeast San Diego, where one of her friends lived. Still being chased by police, Aguirre crashed her car. Although Venegas and Duron took off on foot, Aguirre remained in the car because she was then three months pregnant with Venegas's child. As noted ante, Aguirre was arrested the same day.
In a search of Aguirre's car, police found a "pink slip" that had been taken from the K.N. residence and a handicap placard that had been taken from the vehicle stolen from the P.F. residence (count 18, ante). Also found in her car were a ring inscribed with the name, "[J.A.N.]," a jewelry box; two pairs of gloves, including one pair of "mechanic-type" gloves; a safe; a wallet; a camera; and three cell phones. On her cell phone, police found a picture of Venegas wearing some of the gold chains stolen from the L.L. home.
Cell phone records showed an incoming call from one of Aguirre's phones to Venegas's phone at 10:45 a.m. that accessed a tower about a mile from the K.N. residence. At 12:24 p.m. that day, there was a call from Venegas's phone to Antar's phone that lasted 25 seconds; an incoming call from Antar's phone to Venegas's phone at 12:30 p.m. that lasted 45 seconds; and following the high-speed chase and crash, an incoming call to Venegas's phone at 3:34 p.m. that accessed a cell tower about a quarter-mile from the Jewelers Exchange. At 8:35 p.m. that night, there was an outgoing call from Duron's phone to Montes's phone that accessed a tower within a quarter-mile of East Bradley Avenue in El Cajon.
On this record, we conclude ample evidence supports Venegas's conviction on count 35 in connection with the burglary of the K.N. residence. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 37:
C.Ma. testified that she lived in a home located on Del Mar Trails Road in San Diego on March 11, 2013; that when she returned home and entered the house through the garage at about 4:00 p.m., she found "bits of glass splattered between the kitchen and the dining room area"; that the front door was open about a foot; and that when she walked into the kitchen area, she saw glass all over the floor from a sliding glass door that had been shattered to gain entry. C.Ma. also saw a rock from their yard lying on the floor.
Upstairs, C.Ma. found two big drawers to her bureau open and empty. Missing from the drawers were jewelry she had collected for 30 years; a teak box that contained letters from her mother; and coins. Also taken from the bedroom was a pillowcase from a bedroom pillow. Other items taken included a laptop computer and a gun owned by her husband.
Cell phone records from this date showed an incoming call to Fults's cell phone at 1:11 p.m. that accessed cell towers from about a mile to within a few hundred yards of the C.Ma. residence. Beginning at 6:22 p.m., the records show a series of calls between Venegas's phone and the phones of Antar and/or Fults.
On this record, we conclude there is substantial evidence to support Venegas's conviction on count 37. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 38:
S.D. testified that he lived in a home located on Amberglades Lane in San Diego on March 25, 2013; that after he returned home from lunch that day, he saw a kitchen knife lying on a doormat located just outside the garage door; and that on investigation, he found two safes from two separate closets and a revolver had been stolen. Near one of the closets, S.D. found another kitchen knife. S.D. found glass from a door had been "shattered," as if someone had "kicked" it in to gain entry to the home.
Beside the safes and revolver, other items stolen from the home included jewelry; a jewelry box; and a computer. Later in 2013, S.D.'s wife identified some documents that had been taken during the burglary; one of the safes that contained the documents; and the revolver that also had been inside the safe.
Cell phone records for this date showed a series of calls between 2:39 and 2:44 p.m. involving Venegas's phone that accessed a cell phone tower about half a mile west of the S.D. residence. At 3:48 p.m., there was an incoming call to Venegas's phone from and, at 4:02 p.m., there was an outgoing call from Venegas's phone to Antar's phone, both of which accessed a cell tower about a quarter of a mile from Fults's residence. At 5:08 p.m., the records showed Venegas received a call that accessed a cell tower about a quarter-mile from the Jewelers Exchange. At 6:58 p.m., there were four outgoing calls from Venegas's phone to Antar's phone. At 7:18 p.m., there was another call from Venegas's phone to Antar's phone that lasted 42 seconds and that accessed a cell tower about a half-mile east of the Jewelers Exchange.
On this record, we conclude there is ample evidence to support Venegas's conviction on count 38. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 39:
C.G. testified he was living in a home located on Mustang Ridge Drive in the Carmel Valley area of San Diego on April 2, 2013; that he left his home at about 11:15 a.m. and returned at about 12:35 p.m.; that on entry, he found glass on the floor in the breakfast nook area; and that when he entered his home office located at the back of the home, like so many other victims he found a dual pane window in the door leading to the patio had been smashed—in this instance with a stepping stone—to gain entry into the home. C.G. found an iPad missing from his office.
After police arrived and cleared the house, C.G. went upstairs and found his nightstand drawer resting on the bed. Missing from the master bedroom were a pearl necklace; a drawer from his late wife's antique jewelry box; about $600 in cash; and a laptop computer.
Cell phone records showed on this date an incoming call from Antar's phone to Venegas's phone at 9:49 a.m. lasting one minute 13 seconds; and an incoming call to Fults's phone at 10:25 a.m. that accessed a tower about a mile or two from the C.G. residence. At 1:30 p.m., there was an incoming call from Antar's phone to Venegas's phone lasting one minute six seconds; at 3:39 p.m., there was an outgoing call from Venegas's phone to Antar's phone lasting 55 seconds; at 10:16 p.m., there was an incoming call to Venegas's phone from Antar's phone lasting nine seconds that connected to a tower about a half to three-quarters of a mile from the Jewelers Exchange; at 10:20 p.m., there was an incoming call from Antar's phone to Venegas's phone that lasted 35 seconds that accessed a cell tower about a third of a mile north of the Jewelers Exchange; at 10:24 p.m., there was an outgoing call from Venegas's phone to Antar's phone that also lasted 35 seconds; and finally, at 10:30 p.m., there was an outgoing call from Fults's phone.
Based on this substantial evidence, we conclude Venegas was properly convicted on count 39. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 40:
E.Z. testified that she resided in a home located on Pine Glen Lane in El Cajon on April 4, 2013; that when she and her young baby arrived home at about 6:00 p.m., she climbed the stairs only to find a "little box" lying on the ground in the hallway; that she became frightened when she looked into her daughter's room and saw all the dresser drawers open; and that when she went into the master bedroom, she saw her dresser drawers also open and her jewelry box, with all her jewelry missing, on the floor. As a result of the burglary, E.Z. refused to continue living in the home.
E.Z. twice went to a property viewing in an attempt to identify items stolen in the burglary. As a result of the viewings, she identified a handbag; a gold watch that belonged to her husband and a similar watch that belonged to her; her wallet and its contents; necklaces and bracelets; earrings; several crosses and a rosary; cuff links; and coins among other items.
Cell phone records from this date showed there was an outgoing call at 11:25 a.m. from Venegas's phone to Antar's phone lasting about one minute 36 seconds. That particular call accessed a tower about three-quarters of a mile from the E.Z. residence. Phone records further showed calls between the phones of Venegas and Antar at 12:19 and again at 12:42 p.m. The 12:42 p.m. call accessed a cell tower about a half-mile away from the Jewelers Exchange.
A photograph found on Antar's computer taken on April 4, 2013—the same day as the burglary of the E.Z. residence—showed a ring on a "gram scale" on a desk inside Antar's suite.
In light of such evidence, we conclude Venegas's conviction on count 40 was proper. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 41:
W.R. testified that he and his wife were residing in a home located on Eton Court in Chula Vista on April 16, 2013; that around 2:30 p.m., he received a telephone call from his children that a door to the home was open; that when he arrived home, he found the door between the garage and kitchen completely broken away from its frame; that he noticed his dog walked with a limp and had a lump on his head; and that right next to the dog door was a "cleaning stick" W.R. typically used to clean the pool.
On inspection, W.R. found that the master bedroom had been "completely tossed"; that the mattress was upside down; and that a safe kept in the closet had been torn out and removed, ostensibly with either a crowbar or shovel, both of which were lying on the closet floor. The contents of the safe included guns; jewelry; money; pictures; important documents; and family mementos. Also taken from the house was his daughter's jewelry box; the children's piggy banks; an iPad; cameras; and video games. At a property viewing in summer 2013, W.R.'s wife, A.R., identified items taken from the home including their daughter's jewelry box; some of their passports; their son's baby teeth; watches; ammunition; and some jewelry.
A.R. testified that she went to two property viewings in an attempt to identify items stolen from their home. At the first viewing in 2013, she identified her wallet and its contents and a name tag she used for work among other items, as summarized ante. At the second property viewing in early 2014, she identified several items of jewelry including pearls; rubies that had been removed from a gold setting; a locket; and earrings. A.R. further testified she knew Venegas because he was her nephew.
Phone records from this date showed two incoming calls to Fults's phone at 1:01 and 1:02 p.m., both of which accessed a cell tower about a quarter-mile north of the W.R. residence. Another call within the same general time frame involving Venegas's phone was made about a mile east of the W.R. home. At 1:41 and 3:03 p.m., there were incoming calls to Venegas's phone from Antar's phone; and at 3:55 p.m., there was an outgoing call from Venegas's phone to Antar's phone that lasted 35 seconds. At 4:30 p.m., there was an incoming call to Fults's phone that accessed a cell tower about a quarter-mile west of the Jewelers Exchange. Near the same time, there was cell phone activity involving Venegas's phone that again accessed a tower about a quarter of a mile away from the Jewelers Exchange.
This evidence amply supports Venegas's conviction on count 41. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 42:
H.K. testified that he resided at a home located on Willowmere Lane in the Carmel Valley area of San Diego on April 18, 2013; that during the night while on vacation, he received a call from San Diego police informing him the residence had been burglarized; and that in response, H.K. called his son who lived about a mile away. On inspection, H.K.'s son found the garage door open and police at the residence.
Again, like so many other homes burglarized during the conspiracy, entry into the H.K. home was made through the back of the house by "smash[ing a] window." Also like most, if not all of the other burglaries, the master bedroom had been "torn apart" during the break-in. Items stolen from the home included a safe that weighed about 100 pounds that had been in the master bedroom closet.
Also stolen was H.K.'s wife's car. When police found the car in Pacific Beach, its motor was running and its doors were open. Police tracked the car to the H.K. residence. When police went to the family home, it was then they discovered it had been burglarized. In summer 2013, police notified H.K. his safe had been found, including some of its contents such as passports and the pink slips to various cars among other items.
Cell phone records from this date showed an outgoing call from Venegas's phone to Antar's phone at 1:28 p.m. lasting one minute seven seconds, which connected to a cell tower about two and a half miles north of the H.K. residence.
We conclude this evidence is substantial and supports Venegas's conviction on count 42. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 43:
C.Mc. testified that she resided in a home located on Central Avenue in Bonita in April 2013; that on April 1, she left at about 9:50 a.m. and returned about an hour later; that on returning, she found a "cupboard" open in the garage; that when she went inside the home, she found all the drawers in the kitchen had been opened and the back door "propped open" with a "big candleholder" from the patio; and that she immediately left the residence and called police.
After police secured the home, C.Mc. went back inside and found the doorknob to the laundry room door bent, ostensibly after the door was pried open. Upstairs in the bedroom, C.Mc., like nearly all of the other victims of the burglary conspiracy, found it had been "ransacked." Items stolen from the home included family jewelry, including pieces she had received from her mother and grandmother.
On April 22, 2013, the C.Mc. home was broken into a second time. At about 3:07 p.m. that day, her husband called and informed her the alarm company had contacted a neighbor because their alarm was sounding. When C.Mc. returned home, she saw a computer and television had been unplugged, but not taken. Missing from the bedroom was jewelry that had not been taken during the first break-in; original "Barbie" and "Ken" collectible dolls; and a pillowcase from a bedroom pillow. C.Mc. found a "butcher knife" on her bed.
C.Mc. attended two property viewings at a sheriff's station. She identified a bracelet and a pearl necklace that had been taken during the break-ins.
In light of such evidence, we conclude Venegas's conviction on count 43 was proper. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 44:
M.D. testified that he was residing in a home located on Mountain Pass Road in San Diego on April 23, 2013; and that at about 3:00 or 4:00 p.m. that day, his girlfriend returned to the home and found its backdoor "smashed" and glass "everywhere." M.D. immediately returned home and met police. On inspection, M.D. saw a window in the back also had been smashed.
After police secured the home, M.D. went inside and found it had been "trashed" during the break-in; that inside the master bedroom, "everything" had been gone through and just thrown about; that a storage chest had been smashed against a wall, damaging both the floor tile and the wall; and that in several of the rooms, things had been taken out and thrown on the floor. Items stolen from this home included a safe that contained a firearm and jewelry among other items. According to M.D., police later recovered some documents he stored in the safe.
Cell phone records from this date showed Fults's phone accessed a cell tower about a half-mile north of the M.D. residence. At 1:24 p.m., Venegas's phone made an outgoing call that accessed a cell tower in the same general location as the tower previously accessed by Fults's phone. At 2:36 p.m., there was an outgoing call from Venegas's phone to Antar's phone lasting 32 seconds. At 2:40 p.m., there was an incoming call to Venegas's phone from Antar's phone lasting 38 seconds, which accessed a tower about a mile east of the Jewelers Exchange.
In light of such substantial evidence, we conclude Venegas's conviction on count 44 was proper. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 45:
J.Stu. testified that on May 8, 2013, she resided in a home located on Helix Street in Spring Valley; that when she came home from work at about 7:30 p.m., she discovered her bedroom window had been pried open and her screen cut and removed from the window; that everything inside her bedroom had been "tossed" about; that 12 jewelry boxes containing her jewelry, coins from around the world, and a knife collection, had been taken; and that three pillowcases were missing from her pillows. In summer 2013 and again in early 2014, J.Stu. went to a sheriff's station and identified items taken from her home including a necklace and bracelet; a gold pin; a travel bag; an arrowhead she had found hiking; and some of the jewelry boxes—albeit emptied.
Cell phone records for this date showed several calls between the phones of Venegas and Antar, including at 1:28 p.m. lasting 37 seconds; at 1:45 and another at 1:46 p.m., the latter of which lasted 41 seconds; and at 1:56 p.m. that lasted 34 seconds. The call at 1:56 p.m. accessed a cell tower located about a quarter-mile from the Jewelers Exchange. At 4:14 p.m., Venegas's phone made an outgoing call to Antar's phone lasting 25 seconds. This call accessed a cell tower about a quarter-mile southwest of the Jewelers Exchange.
From the foregoing, we conclude Venegas's conviction on count 45 was supported by substantial evidence. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 46:
B.C. testified that on May 13, 2013, he was residing in a home located on Helix Street in Spring Valley; that when he arrived home after picking up his son from school, he saw "tire tracks" across his front lawn and two fruit trees knocked down; that when he went to the backyard, he saw the French doors to his bedroom open; and that from the outside, he could see the contents of his bedroom had been "strewn about." On investigation, B.C. found the gun safe inside his bedroom, which he estimated weighed 400 pounds, had been stolen. Items inside the safe included a rifle; shotgun; a handgun; ammunition; personal documents; about 35 silver coins; photographs; and his wife's jewelry.
About a month after the break-in, B.C. went to a sheriff's station and identified "some loose articles" that he had kept inside the safe. In January 2014, B.C.'s wife went to another property viewing and identified a "Batman 50th anniversary commemorative" silver coin that also had been inside the safe.
Cell phone records for this date showed a call at 11:16 a.m. involving Venegas's phone that connected to a cell tower about a mile away from the B.C. residence. At 3:36 p.m., there was an outgoing call from Venegas's phone to Antar's phone that lasted three minutes 26 seconds.
In light of this evidence, we conclude Venegas's conviction on count 46 was proper. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 47:
S.C. testified that on June 21, 2013, she was residing in a home located on Cypress Del Mar in San Diego; that at about 1:45 p.m., her alarm company called to inform her that a sensor on the front door had been activated; that when she arrived home about 10 minutes later, she walked into her living room and saw her laptop lying on the couch, which she stated was "impossible"; and that the glass door in the dining room was open and the blinds were blowing from the wind. In the kitchen, S.C. found a broken window, glass everywhere, and a footprint on the countertop.
In the master bedroom, S.C. found all the drawers open, with some turned upside down on the ground. Missing from the bedroom were jewelry; an iPad; watches including a Rolex taken from a desk; a rifle; antique coins; a duffle bag; and cash in different currencies. Like so many other victims of the burglary conspiracy, S.C. also found a kitchen knife resting on a table.
Cell phone records for this date showed at 1:29 p.m. Venegas's phone received an incoming call that accessed a cell tower about three-quarters of a mile west of the S.C. home. At 3:53 p.m. Venegas's phone received an incoming call that accessed a tower about a quarter-mile west of the Jewelers Exchange.
In light of this substantial evidence, we conclude Venegas's conviction on count 47 was proper. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
Count 48:
C.B. testified she lived in a home located on Overpark Road in the Carmel Valley area of San Diego on July 19, 2013; that she left her home at about 10:00 a.m. and returned at about 12:00 p.m. to find a police car and neighbors in front of her home; that after her home was secured, she went inside and found the sliding glass door in the breakfast nook that led to the patio had been broken "into tiny little pieces"; and that when she went into the bedrooms, she found they had been "ransacked" and everything had been "dumped" on the floor. In the walk-in closet in one of the bedrooms, C.B. found a kitchen knife on a hamper. C.B. also found a knife on a bed in a guest bedroom.
C.B. found all her jewelry had been dumped into a shopping bag in the bedroom. Although no jewelry was stolen, C.B. lost some Canadian coins she kept in the office.
Cell phone records for this date showed two outgoing calls from Venegas's phone at 10:14 and 10:21 a.m. Both calls accessed a cell tower about three-quarters of a mile from the C.B. residence. At 12:06 p.m., there was an incoming call from Antar's phone to Venegas's phone lasting 13 seconds.
Subsequent DNA analysis of a right shoe found down the hill behind the C.B. home showed Venegas was included as a possible major contributor and was also included as a minor contributor to a right glove that was found on a cinderblock wall near the home.
In light of such evidence, we conclude Venegas's conviction on count 48 was also proper. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
D. Count 49
A conspiracy requires two or more persons agreeing to commit a crime, along with the commission in California of an overt act by at least one of these persons in furtherance of the conspiracy. (People v. Swain (1996) 12 Cal.4th 593, 600; see § 182, subd. (a)(1).) These elements may be established through circumstantial evidence (People v. Herrera (2000) 83 Cal.App.4th 46, 64), which "may . . . ' "be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy." ' " (Ibid.)
"Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts are expressly alleged in the indictment or information, nor unless one of the acts alleged is proved; but other overt acts not alleged may be given in evidence." (§ 182, subd. (b).) An overt act must further the object of the conspiracy and at least start to carry the conspiracy into effect (People v. Olson (1965) 232 Cal.App.2d 480, 490), but it need not amount to a criminal attempt (People v. George (1968) 257 Cal.App.2d 805, 808) or itself be a criminal act (People v. Saugstad (1962) 203 Cal.App.2d 536, 549); and it may merely be part of the preliminary arrangement for commission of the ultimate offense (ibid.).
Here, as noted ante, the amended information alleged 157 overt acts that were committed in San Diego County in connection with the burglary conspiracy Venegas spearheaded. Based on the evidence summarized ante, in connection with the above counts, we conclude substantial evidence supports the finding that Venegas intended to agree, and agreed with Antar and/or Duron and Fults, to commit residential burglary and that at least one such individual committed at least one (if not all) of the overt acts in furtherance of the conspiracy. Thus, we conclude Venegas's conviction on count 49 was proper. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
E. Denial of Romero Motion
Following the jury's verdict, Venegas filed a motion under Romero and section 1385 asking the court to exercise its discretion and dismiss a strike prior. The record shows the court denied that motion.
In so doing, the court found it could not reach the conclusion that the instant case did not fit within the intent and the purpose of the "Three Strikes" law. Rather, the court found the opposite to be true: that the instant case and Venegas in particular were the very reasons the Three Strikes law was enacted. The court noted that, despite being involved in the criminal justice system for more than 40 years, it had never seen a case with so many proven counts. The court further noted Venegas was an adult when he committed the prior strikes, but nonetheless did not then learn his lesson after serving time in state prison.
The court further noted that Venegas was a "leader" in the burglary ring, a finding borne out by the evidence summarized ante; that the burglary ring was "sophisticated" and involved the "systematic combing of neighborhoods looking for a house that looked like it was soft"; that before entering such a home, someone other than Venegas checked the home to determine whether it was occupied; that even if the house was unoccupied, Venegas "routinely" took kitchen knives that "wound up in bedrooms—typically ransacked bedrooms"; and that Venegas ostensibly possessed a knife "in case somebody confronted [him], so that's all thought out."
The record shows the court also rejected Venegas's contention he was subject to cruel and unusual punishment under the Eighth Amendment, as the court found that Venegas was 27 years old, as opposed to being a juvenile, at the time of sentencing; that the court was merely following the law in sentencing Venegas; and that Venegas sentence was (extremely) lengthy because of the number of his strike priors and obviously, because of the number of proven charges in connection with the instant case.
In Romero, supra, 13 Cal.4th at pages 504 and 529-530, our high court concluded that section 1385, subdivision (a) permits a court " 'in furtherance of justice' " to strike prior felony conviction allegations in cases brought under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Although our Legislature has not defined the phrase "in furtherance of justice" contained in that subdivision, our high court has concluded this language requires a court to consider both the " ' "constitutional rights of the defendant, and the interests of society represented by the People" ' " in determining whether to strike a prior felony conviction allegation. (Romero, at p. 530, italics omitted; see People v. Carmony (2004) 33 Cal.4th 367, 371 [concluding a court's decision not to dismiss a prior strike conviction allegation under § 1385, subd. (a) is reviewed under an abuse of discretion standard], 377 [and further concluding "a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it"]; People v. Williams (1998) 17 Cal.4th 148, 159, 161 [noting that, in deciding whether to dismiss a strike under § 1385, subd. (a), a court should "consider whether, in light of the nature and circumstances of his [or her] present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies"].)
Section 1385, subdivision (a) provides in part that a trial court "may, either of [its] own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record. The court shall also set forth the reasons in an order entered upon the minutes . . . ."
Here, we conclude the court properly exercised its discretion when it refused to strike a prior strike allegation under Romero and section 1385, subdivision (a) in light of (1) the evidence summarized ante, and the sheer number of proven counts of first degree burglary, and/or attempted burglary, in this case; (2) Venegas's extensive criminal history, which also involved residential burglaries, as also summarized ante; and (3) the court's consideration on the record of the various factors discussed in Williams. As such, our independent review of the record discloses no reasonably arguable appellate issue with respect to the court's denial of Venegas's Romero motion to strike a strike prior.
F. Direct Victim Restitution Award
Section 1202.4 provides in part "that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime." (§ 1202.4, subd. (a)(1).) "To that end, section 1202.4 provides that, with certain exceptions not relevant here, 'in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims.' (Id., subd. (f).) The statute further provides that the court's restitution order shall, '[t]o the extent possible . . . fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct.' (Id., subd. (f)(3).) This provision, as the Courts of Appeal have uniformly held . . . authorizes trial courts to order direct victim restitution for those losses incurred as a result of the crime of which the defendant was convicted. [Citations.]" (People v. Martinez (2017) 2 Cal.5th 1093, 1100-1101.)
Here, the record shows the trial court at sentencing pronounced that direct victim restitution under section 1202.4, subdivision (f) would be imposed as set forth in the recommendation in the probation report and that the amount of said restitution was $685,446.67, as also summarized in the probation report. The record further shows that the probation report recommended that Venegas pay restitution "jointly and severally with codefendant Sami Antar, Jose Montes, Paulina Aguirre, Ricardo Duron and Ronnie Fults"; and that the sentencing minute order further provided that restitution to victims was "per P.O.'s [i.e., probation officer's] Report."
Codefendant Antar, in connection with his separate appeal, filed in November 2016 a motion to take judicial notice of court records of Venegas, Fults, Duron, Montes, and Aguirre, which this court granted. These records show the trial court on March 30, 2016, filed an amended abstract of judgment, ordering Venegas to pay direct victim restitution in the amount of $754,099.52, as adjusted by the probation officer's report.
These records further show that Fults's abstract of judgment did not include a victim restitution award pursuant to section 1202.4, subdivision (f); that Duron's abstract of judgment provided victim restitution was to be imposed in an "[a]mount to be determined" per the "[v]ictim name(s) in probation officer's report"; that Montes was to pay victim restitution on counts 4 (i.e., S.T.) and 5 (i.e., T.M.) and as to "Coin Mart" that was "joint and several" as to Aguirre only; and that Aguirre was to pay victim restitution of "2X" as per the probation officer's report, without indicating whether that award was joint and several as to any of the members involved in the conspiracy.
Finally, as to codefendant Antar, the record in his separate appeal shows that the probation report also recommended restitution be paid "jointly and severally with codefendant[s] Miguel Venegas, Paulina Aguirre, Jose Montes, Ronnie Fults and Ricardo Duron"; and that the total restitution imposed on Antar was then "$685,446.67," or the same amount that was initially imposed on Venegas. However, at Antar's sentencing on March 25, 2016, the court imposed an "updated total" of $754,108.92 in direct victim restitution, which amount, we note, is slightly higher (i.e., $9.40) than the adjusted victim restitution imposed on Venegas (i.e., $754,099.52).
Moreover, codefendant Antar's sentencing minute order provided that restitution to victims was "joint and several" in the amount of $754,108.92, but did not specify who among the members of the conspiracy was jointly and severally liable to pay victim restitution. What's more, Antar's abstract of judgment set victim restitution under section 1202.4, subdivision (f) in the amount of $754,099.52—again, $9.40 less than the amount set forth in Antar's sentencing minute order and as pronounced by the court at Antar's sentencing—without specifying whether it was joint and several.
Given this confusion, remand is warranted to clarify (1) who within the conspiracy is obligated to pay direct victim restitution under section 1202.4, subdivision (f) and (2) the total amount of victim restitution to be paid.
G. Imposition of Theft Fine
In connection with our Wende review, we have determined the court improperly set the theft case fine. The record shows the court set this fine at $1,542. However, the theft case fine is $10 per case, not per count. (See § 1202.5, subd. (a); see also People v. Crittle (2007) 154 Cal.App.4th 368, 371 [noting the imposition of two $10 fines "was unauthorized" because this "fine can be imposed only once '[i]n any case.' (§ 1202.5, subd. (a)"].) Venegas's abstract of judgment should be amended accordingly.
H. No Other Reasonable Arguable Issues
Finally, we have examined the entire record (including as supplemented and augmented) as mandated by Wende. Other than the confusion concerning direct victim restitution and the incorrect amount of the theft case fine set by the court, both of which are addressed ante, we have not identified any other reasonable arguable issue for reversal on appeal. We are satisfied that Venegas's appointed counsel has fully complied with counsel's responsibilities and that no other arguable issues exist. (See id. at p. 441.)
DISPOSITION
We remand to clarify who among the members of the conspiracy is obligated to pay direct victim restitution under section 1202.4, subdivision (f) and the amount of restitution to be paid. Moreover, Venegas's abstract of judgment should be corrected to show the theft fine under section 1202.5, subdivision (a) is $10, not $1,542. Once the abstract of judgment is corrected, the trial court is further directed to forward a corrected certified copy to the Department of Corrections and Rehabilitation. In all other respects, Venegas's judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: NARES, J. AARON, J.