People v. Gomez CA4/1

Filed 6/3/16 P. v. Gomez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D067057

Plaintiff and Respondent,

v. (Super. Ct. No. SCD253574)

ALEJANDRO GOMEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Peter C.

Deddeh, Judge. Affirmed in part; reversed in part and remanded.

Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Alejandro Gomez of attempted burglary, three counts of first

degree burglary of inhabited dwellings, two counts of unlawfully taking and driving a
vehicle, unlawful possession of ammunition, and two counts of grand theft of a firearm.

He appeals, contending: (1) the trial court erroneously ruled that each of the charged

counts was cross-admissible to prove other charges; (2) the trial court failed to sua sponte

instruct the jury on accomplice status and testimony; (3) insufficient evidence supported

multiple counts; (4) the prosecutor committed prejudicial misconduct; and (5) the trial

court failed to warn him of the consequences of admitting his prior convictions. The

Attorney General concedes, and we agree, that the trial court failed to warn Gomez that

admitting his prior convictions would subject him to a longer prison term. Accordingly,

we reverse the sentence enhancements for Gomez's five prison priors and remand for a

new adjudication on the allegations, either by trial or admission. In all other respects, we

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Count 1: Attempted Burglary of Francisco Quiroz's Vehicle

On an early morning in April 2011, Francisco Quiroz heard a loud noise of "metal

to metal, grinding" outside of his bedroom window where he had parked his 2003 Jeep

Cherokee vehicle. Quiroz looked out of his window and saw a Hispanic man, about five

feet, six inches tall, and dressed in black trying to break into his Jeep. Quiroz yelled at

the man and the man ran off.

Quiroz called the police. When an officer arrived, he found that someone had

tampered with the driver's side door lock on Quiroz's vehicle and there was a red colored

stain on the door handle. The officer believed the red matter was blood and took a

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biological stain sample. An analysis of the stain sample concluded it had a mixture of

DNA from two people.

In 2013, the San Diego Police Department obtained a DNA sample from Gomez.

Gomez's DNA matched the predominant DNA profile obtained from the swab of the

bloodstain on Quiroz's vehicle. The probability that a person selected at random would

match the DNA obtained from Quiroz's vehicle was one in 1.2 sextillion for the

Caucasian population, one in 87 sextillion for the African-American population, and one

in 10 sextillion for the Hispanic population.

Count 2: Burglary of Ricardo Rodriguez's Home

On a night in August 2012, Andre Tate saw Gomez park a Honda Accord in a

poorly lit area and then walk to the front door of the home of Tate's neighbor, Ricardo

Rodriguez. Tate observed Gomez walking around Rodriguez's house, peering in

windows in a suspicious manner, and knocking on the front door. Tate then heard

Gomez jump on trash cans. Tate proceeded to his own backyard and saw Gomez in

Rodriguez's bedroom "looking for stuff." Tate demanded to know what Gomez was

doing in Rodriguez's home. Gomez responded, "he knows I'm here." Tate said, "No he

don't. Get the fuck out of my homeboy's house." Tate told his wife to call the police.

Tate grabbed a bat and went to the front of the house, anticipating that Gomez

would exit out the front door, but did not see Gomez again. While Tate was waiting for

the police, Rodriguez arrived home. Tate told Rodriguez someone had broken into

Rodriguez's house and pointed out the car in which the burglar had arrived.

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 Inside the house, Rodriguez discovered that his bedroom closet had been

ransacked, his sheets were moved, and his step daughter's shoes were missing.

Rodriguez believed the burglar entered through one of two windows because the screens

on those windows were ripped before the burglary.

San Diego Police Department Officer Kyle Williams responded to Rodriguez's

house. Officer Williams found no signs of forced entry and believed the burglar entered

through an unlocked back door. Officer Williams examined the Honda Accord in which

Gomez had arrived. The windows were down and the doors were unlocked. Officer

Williams attempted to contact the vehicle's registered owner and left it where it was

parked.

After Officer Williams left, Rodriguez put gloves on and found registration

paperwork in the car's interior. He also saw a screwdriver on the driver's side floorboard.

Rodriguez called the vehicle's registered owner, Joyce Haffey, who had not given anyone

permission to drive her car and was unaware at that point that it had been stolen.

A few hours later, Gomez returned to the Honda. Tate said to Rodriguez, "That's

the guy." Rodriguez tried to stop Gomez, but Gomez almost ran him over. Rodriguez

called the police, but Gomez was gone by the time an officer arrived. Officers recovered

the Honda approximately one week later.

As part of the police investigation, an officer showed Tate and Rodriguez a photo

lineup. Tate immediately identified Gomez as the burglar in the photo lineup. According

to Tate, he remembered Gomez's face because they had a brief conversation while Gomez

was in Rodriguez's well-lit bedroom.

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Count 3: Unlawful Taking and Driving of Joyce Haffey's Honda

On the same night as the Rodriguez burglary, Haffey had parked her Honda

Accord in her designated parking space in an alley behind her home in Normal Heights.

Haffey believed she had locked her car and had both key fobs for it, but left the valet key

in the glove compartment. That night, Haffey received a call from Rodriguez. Rodriguez

told Haffey that her car may have been involved in a crime. Haffey looked for her car

and saw that it was gone. She called the police.

Approximately one week later, Officer Brandon Woodland investigated a report of

a possible stolen vehicle in the Mid City area of San Diego, which was about a mile and a

half from Haffey's home. The vehicle was Haffey's Honda Accord. Inside the vehicle,

officers found various items that did not belong to Haffey, including a bag of men's

clothing, a backpack, a beer can, and a loaded magazine for a nine millimeter firearm.

Officer Woodland collected items from Haffey's car for DNA testing. A pair of

sunglasses from the bag of clothing and the beer can had DNA matching Gomez's profile

on them. The probability that an individual selected at random would match the DNA

profile collected from the evidence was one in 1.2 sextillion in the Caucasian population,

one in 87 sextillion in the African-American population, and one in 10 sextillion in the

Hispanic population.

Count 4: Unlawful Possession of Ammunition

The loaded nine millimeter firearm magazine recovered from Haffey's vehicle did

not belong to her. A criminalist was only able to recover a partial DNA profile from a

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swab of the magazine because there was a "low level" of DNA on it. The criminalist

concluded Gomez was a possible source of the DNA.

The parties stipulated Gomez had previously been convicted of a felony.

Count 5: Unlawful Taking and Driving of Ivan Lopez's Acura

On an evening in June 2013, Ivan Lopez parked his red Acura Vigor near his

home in the Logan Heights area of San Diego. He could not recall whether he had locked

it. When he went outside the next morning, the car was gone. Lopez called the police

and reported his car stolen.

Two days later, San Diego Police Officers Jared Thompson and John Denny, who

were on a special detail assignment to locate stolen vehicles, spotted an Acura Vigor

closely followed by a cream colored Lincoln Continental. Officer Thompson radioed

uniformed members of his team to check the license plates of both vehicles and, as a

result, learned the Acura was stolen. The Lincoln was not a stolen vehicle.

The Acura and the Lincoln pulled over and parked at 3100 Clay Avenue. Officers

Thompson and Denny observed the Acura until Officers John Rzucidlo and Robert

Withers arrived. The Lincoln pulled away from the curb, while the Acura remained.

When Officers Rzucidlo and Withers arrived and inspected the Acura, they found it was

unoccupied and unlocked.

Officer Withers contacted Lopez, who came to the location to retrieve his car.

Lopez's stereo and a box of tools worth approximately $500 were missing from the

vehicle. The vehicle's ignition appeared to have been forced with a screwdriver. Inside

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the vehicle, officers found a screwdriver that did not belong to Lopez. Officer Withers

took swabs from the steering wheel and gear shift for DNA testing.

Meanwhile, Officers Thompson and Denny drove around and located the Lincoln.

They followed it until it parked in front of 3019 Clay Avenue. Officer Thompson

contacted the Lincoln's driver, Javier Monterossa. Monterossa told Officer Thompson

that Gomez had called him that morning to ask for a ride. Monterossa drove to 3019

Clay Avenue and saw Gomez standing outside. Monterossa told Officer Thompson that

Gomez got into the driver's seat of a red car and drove down the block while Monterossa

followed in the Lincoln. Gomez parked at the curb, exited the vehicle, and requested that

Monterossa drive him to a nearby liquor store. After going to the liquor store, they

returned to a house on Clay Avenue where Gomez got out and told Monterossa to wait

while he went inside the house.

Later, Officer Denny went back and contacted Gomez at the house where the

Lincoln had parked on Clay Avenue. Officer Denny obtained a DNA sample from

Gomez.

At trial, Monterossa stated that he did not want to testify. He acknowledged

Gomez called him to ask for a ride and that he picked Gomez up on Clay Avenue.

Monterossa testified he did not know anything about the red car, never saw Gomez get

into a red car, and did not tell the police that Gomez got into and drove a red car.

Monterossa claimed he simply picked Gomez up, took him to a store, and then returned

to a house on Clay Avenue. Monterossa denied telling police that Gomez went into the

house.

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 A criminalist tested the swabs Officer Withers had taken from the steering wheel

and gear shift of Lopez's Acura for DNA. The DNA analysis included at least two

contributors. Gomez was a possible "major contributor." The chance a person selected at

random would match the DNA was one in 8.8 quadrillion for the Caucasian population,

one in 240 quadrillion for the African-American population and one in 22 quadrillion for

the Hispanic population.

Count 6: Burglary of Charito Garcia's Home

On an evening in September 2013, Charito Garcia returned to her home in the

Talmadge area of San Diego and found the kitchen door and window open. She had

locked all doors and latched all windows before she left her house that morning. Garcia's

belonging were in boxes because she had just moved into the house.

Garcia saw that someone had rummaged through her boxes and her belongings

were strewn about. She owned many items of jewelry, which were all missing. The

burglar also stole Garcia's new computer, backpack, toothpaste, soap, shampoo and

cigarettes.

The burglar left behind an opened bottle of beer on the kitchen counter that he had

taken from Garcia's refrigerator. DNA obtained from the mouth area of the bottle

matched Gomez's DNA profile. The probability that an individual selected at random

would match the DNA on the bottle was one in 1.2 sextillion for the Caucasian

population, one in 87 sextillion for the African-American population, and one in 10

sextillion for the Hispanic population.

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Counts 7, 8, and 9: Burglary of Christian Carranza's Home and Two Counts of Grand

Theft of a Firearm

Christian Carranza was a United States Border Patrol Agent. On an evening in

September 2013, Carranza left his home in the City Heights area of San Diego to go to

dinner. Before he left, he secured his two loaded firearms, badge, and credentials in a

Border Patrol issued "briefcase-type" safe and left it in his bedroom. He also locked his

doors, but left a few windows open two to three inches to provide fresh air for his puppy.

Carranza had security apparatuses in the windows to keep them from opening further.

When Carranza arrived home shortly before 11:00 p.m., he saw his metal security

door open and two window screens leaning against his house. When he entered his

house, Carranza found his bedroom had been "ransacked." His gun safe was open and

the items in it, including his two guns, badge and credentials, were missing. The gun safe

looked like it had been pried open with a screwdriver.

Carranza also discovered his rare 1996 Nike Air Max Moore Tempos, worn by

NBA player Scottie Pippen in the 1996 NBA finals, an iPad, two iPods, two pairs of

sunglasses, multiple headphones, and clothing were missing. Two beers were missing

from the refrigerator. The burglar left behind a pair of red and white Nike shoes and a

screwdriver.

Carranza believed the burglar came in through the bedroom window because the

blinds were disturbed and the security apparatus that had been on it was on the floor.

Carranza called the police.

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 Both of the red and white Nike shoes left behind in Carranza's home had a mixture

of DNA from at least four people. Gomez was a possible major contributor to the DNA

on both the left and right shoe. The probability that a person selected at random would be

included as a possible major DNA contributor to the swab of the right shoe was one in

two million for the Caucasian population, one in 33 million for the African-American

population, and one in nine million for the Hispanic population. Similarly, the results for

the left shoe were one in 38 billion for the Caucasian population, one in 770 billion for

the African-American population, and one in 98 billion for the Hispanic population. The

screwdriver recovered from Carranza's home had a mixture of DNA from at least three

people. The predominant DNA profile obtained from the screwdriver matched Gomez's

DNA profile. The probability that an individual selected at random would have the same

DNA as the predominant DNA profile on the screwdriver was one in 1.12 sextillion for

the Caucasian population, one in 87 sextillion for the African-American population, and

one in 10 sextillion for the Hispanic population.

DISCUSSION

I. Cross-Admissibility of Evidence

A. Additional Background

The People moved in limine for a ruling that the evidence of the charged crimes in

counts 1 through 7 was cross-admissible under Evidence Code section 1101, subdivision

(b), to prove common scheme or plan, intent, and identity for all counts. (Undesignated

statutory references are to the Evidence Code.) The People clarified they were not

seeking to lower their burden of proof on the other crimes because they were charged

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crimes that the People were required to prove beyond a reasonable doubt. Rather, the

People sought to alert the court and the defense that they sought to make the evidence

cross-admissible to show identity, motive and knowledge. Defense counsel indicated he

understood the prosecutor's concerns, but his concern was that "each count [had] to stand

on its own." The court noted that defense counsel's concerns could be addressed by a

jury instruction that each count must be considered separately.

On the court's request, the People recited a summary of the facts underlying the

charges, pointing out that multiple crimes included evidence of beer left behind, a

screwdriver, and unlawful entry through a window. The court found there were "several

points that these counts show identity and show MO with regard to the driving the car,

with regard to auto theft, with regard to the beer."

B. Applicable Legal Principles

Section 1101, subdivision (b), authorizes admission of "evidence that a person

committed a crime, civil wrong, or other act" to prove some fact, other than propensity,

"such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake or accident . . . ." (Ibid.; § 1101, subd. (a) [prior criminal act normally not

admissible to prove conduct].) The admissibility of uncharged crimes depends on: " '(1)

the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes

to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the

evidence.' " (People v. Kelly (2007) 42 Cal.4th 763, 783; People v. Ewoldt (1994) 7

Cal.4th 380, 402 (Ewoldt).) "Admission of the evidence involves, inter alia, the danger

of confusing the issues, introducing collateral matters, or tempting the jury to condemn

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[the] defendant because he has escaped adequate punishment in the past." (People v.

Soper (2009) 45 Cal.4th 759, 772-773 (Soper).)

"[T]he applicable analysis is significantly different in the context of properly

joined charged offenses. [Citations.] . . . When the offenses are [properly] joined for

trial the defendant's guilt of all the offenses is at issue and the problem of confusing the

jury with collateral matters does not arise. The other-crimes evidence does not relate to

[an] offense for which the defendant may have escaped punishment." (Soper, supra, 45

Cal.4th at p. 773.)

"[T]here exists a continuum concerning the degree of similarity required for cross-

admissibility, depending upon the purpose for which introduction of the evidence is

sought: 'The least degree of similarity . . . is required in order to prove intent . . . . In

order to be admissible [for that purpose], the uncharged misconduct must be sufficiently

similar to support the inference that the defendant " 'probably harbor[ed] the same intent

in each instance.' [Citations.]" [Citation.]' [Citation.] By contrast, a higher degree of

similarity is required to prove common design or plan, and the highest degree of

similarity is required to prove identity." (Soper, supra, 45 Cal.4th at p. 776.) In

evaluating the use of "other crimes" evidence on the issues of identity, motive and intent,

a trial court must "carefully review each count in light of the alleged 'other crimes'

evidence to determine its probativeness to prove a material fact other than criminal

disposition and then . . . weigh its probative value against its prejudicial effect before it is

admitted." (People v. Armstead (2002) 102 Cal.App.4th 784, 793-794; §§ 1101, subd.

(b), 352; Ewoldt, supra, 7 Cal.4th at p. 404.)

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C. Analysis

Gomez argues the trial court erroneously ruled that each of the charged counts was

cross-admissible to prove other charges. He does not dispute that the charges were

properly joined and that the jury would have heard all evidence relating to the charges

even without the court's ruling. However, Gomez contends the court failed to conduct a

proper analysis regarding cross-admissibility and its ruling improperly allowed the

prosecutor to argue the evidence of certain counts showed he had a criminal propensity to

commit other counts.

Here, evidence on some counts was cross-admissible to show intent and a

common plan or scheme. For example, in the Haffey and Lopez car thefts, the thief took

the vehicles in the evening or night after the owners had parked outside their homes

around 6:00 p.m. In both instances, the thief left behind a screwdriver and officers

recovered DNA matching Gomez's profile. Likewise, the Rodriguez, Garcia and

Carranza burglaries had similar characteristics. In all three burglaries, there was evidence

that the perpetrator may have entered through a window. Further, all three victims

described their homes as having been ransacked and left in disarray. Notably, those three

instances all involved a common feature of beer. In connection with the Rodriguez

burglary, officers recovered a beer can with Gomez's DNA in Haffey's car, which the

burglar had driven. In the Carranza burglary, the perpetrator took two beers from the

refrigerator. Lastly, in the Garcia burglary, the burglar left behind an opened bottle of

beer which he had taken from Garcia's refrigerator. This evidence was cross-admissible

to show a common plan or scheme.

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 While evidence on some charges was cross-admissible as to other charges, there

were not similarities connecting all of the crimes sufficient to make them all cross-

admissible against each other. The People concede that "arguably the evidence of not

every charge was cross-admissible to prove every other charge" and that the trial court

did not engage in an analysis of whether each crime was cross-admissible against the

others. (See People v. Armstead, supra, 102 Cal.App.4th at pp. 793-794.) The People

argue, however, the error was harmless under People v. Watson (1956) 46 Cal.2d 818,

836. (People v. Lindberg (2008) 45 Cal.4th 1, 26 [errors in admission of evidence under

section 1101, subdivision (b), are reviewed under the Watson standard of prejudice].) We

agree the error was harmless because Gomez was not prejudiced. It was not reasonably

probable he would have received a more favorable result absent the error.

Gomez argues he was prejudiced because the prosecutor argued there was overlap

in the charges, pointed out the similarities in some of the charged crimes, such as the use

of a screwdriver, evidence of beer, and entry through a window, and urged the jury to

look at the evidence on all charges. Based on our review of the prosecutor's argument,

the prosecutor never urged the jury to wholesale consider every charged crime to prove

every other charged crime. The prosecutor properly argued there was overlap in the

evidence because some crimes were connected. For example, the prosecutor argued

evidence obtained from Haffey's car supported the car theft and the Rodriguez burglary

because witnesses identified Gomez as the person driving the vehicle on the day it was

stolen and using the vehicle in connection with the burglary. Similarly, the prosecutor

argued evidence that Carranza's house was burglarized by someone who left behind

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sneakers and a screwdriver with DNA matching Gomez's profile supported that Gomez

was also the person who stole Carranza's two firearms.

Further, the trial court did not instruct the jury that it could consider the charged

offenses jointly. Instead, the court instructed the jury with CALCRIM No. 3515, which

provided: "Each of the counts charged in this case is a separate crime. You must consider

each count separately and return a separate verdict for each one." (People v. Manriquez

(2005) 37 Cal.4th 547, 579 [defendant's concern that the jury assumed it could consider

the evidence of the charged offenses jointly and based its verdicts on criminal propensity

was addressed by instruction similar to CALCRIM No. 3515].)

In any event, given the overwhelming evidence of Gomez's guilt on each count, it

was not reasonably likely that Gomez would have obtained a more favorable result absent

the prosecutor's argument. On the Quiroz car burglary, an officer inspected the vehicle

shortly after Quiroz scared the perpetrator away. The officer found that someone had

tampered with the driver's side door lock and there was blood on the car's door handle.

The DNA obtained from the bloodstain matched Gomez's DNA profile. The probability

that the DNA was from someone else was one in 1.2 sextillion.

In the Rodriguez burglary, Tate had a brief conversation with Gomez and got a

good look at him in Rodriguez's well-lit bedroom. Tate also recognized Gomez when

Gomez returned to the area for Haffey's car. Based on his interaction with Gomez, Tate

was able to immediately identify Gomez in a photo lineup. Rodriguez saw Gomez come

back to the area of his home for Haffey's car. Both Tate and Rodriguez identified Gomez

at trial.

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 On the crime of unlawfully taking and driving Haffey's car, both Tate and

Rodriguez saw Gomez drive the car. When officers ultimately recovered the vehicle,

they found various items inside the vehicle, including sunglasses and a beer can, that had

DNA matching Gomez's profile on them. The probability that the DNA was from

someone else was one in 1.2 sextillion. Officers also recovered a loaded firearm

magazine from Haffey's car. Although a criminalist was only able to recover a partial

DNA profile from the magazine, he concluded Gomez was a possible source of the DNA.

Further, the prosecution presented evidence that Gomez drove, possessed and controlled

Haffey's vehicle and left items in it containing his DNA.

In the Lopez car theft, officers located Gomez near the stolen vehicle and obtained

a DNA sample from him. Gomez's DNA matched DNA recovered from the steering

wheel and gear shift in Lopez's vehicle. The probability that the DNA was from someone

else was one in 8.8 quadrillion. Further, although at trial Monterossa denied that Gomez

had driven the stolen vehicle, Monterossa initially told officers that Gomez had driven the

car, parked at the curb and then asked Monterossa to drive to a nearby liquor store.

In the Garcia burglary, Gomez's DNA profile matched DNA recovered from the

mouth of a beer bottle the perpetrator had left on Garcia's kitchen counter. The

probability that a person selected at random would match the DNA on the bottle was one

in 1.2 sextillion.

Lastly, in the Carranza burglary and firearm thefts, the perpetrator left behind a

pair of Nike shoes and a screwdriver. Carranza's gun safe looked like it had been pried

open with a screwdriver and a collectible pair of shoes was missing. Gomez was a

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possible contributor to DNA recovered from the shoes and screwdriver the perpetrator

left behind. The probability that a person selected at random would match the DNA was

one in two million for the right shoe, one in 38 billion for the left shoe, and one in 1.12

sextillion for the screwdriver.

Given the state of the evidence, we are convinced that Gomez would not have

obtained a more favorable result if the trial court would have ruled differently on the

cross-admissibility of the evidence and the prosecutor had not argued the overlap of the

evidence.

II. Accomplice Instructions

Gomez argues the trial court erred by failing to sua sponte instruct the jury to

determine if Monterossa was an accomplice whose statements to officers required

corroboration and by failing to include Monterossa's statements as an exception to the

rule that the testimony of one witness can prove an act. We reject these arguments.

Gomez did not request these instructions.

"When the evidence at trial would warrant the jury in concluding that a witness

was an accomplice of the defendant in the crime or crimes for which the defendant is on

trial, the trial court must instruct the jury to determine if the witness was an accomplice"

and that an accomplice's testimony must be corroborated. (People v. Hayes (1999) 21

Cal.4th 1211, 1270-1271; People v. Tobias (2001) 25 Cal.4th 327, 331.) "For

instructional purposes, an accomplice is a person 'who is liable to prosecution for the

identical offense charged against the defendant on trial in the cause in which the

testimony of the accomplice is given.' [Citations.]" (People v. Arias (1996) 13 Cal.4th

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92, 142-143.) "In order to be chargeable with the identical offense, the witness must be

considered a principal under [Penal Code] section 31." (People v. Fauber (1992) 2

Cal.4th 792, 833.)

"An accomplice need not share in the actual perpetration of a crime to be

chargeable as a principal therein; liability as an accomplice to a crime may be based on

having aided and abetted its commission." (People v. Snyder (2003) 112 Cal.App.4th

1200, 1220.) "However, an aider and abettor is chargeable as a principal only to the

extent he or she actually knows and shares the full extent of the perpetrator's specific

criminal intent, and actively promotes, encourages, or assists the perpetrator with the

intent and purpose of advancing the perpetrator's successful commission of the target

offense." (Ibid.)

The trial court has a sua sponte obligation " 'to instruct the jury on the principles

governing the law of accomplices,' including the need for corroboration" when the

evidence warrants it. (People v. Tobias, supra, 25 Cal.4th at p. 331.) However, "[t]he

court need give such instructions only where there is substantial evidence that the witness

was an accomplice." (People v. Boyer (2006) 38 Cal.4th 412, 466.) The evidence must

be sufficient "to permit a jury to conclude by a preponderance of the evidence" that the

witness was an accomplice. (People v. Hernandez (2003) 30 Cal.4th 835, 874.)

Here, based on the evidence presented at Gomez's trial, the court had no sua

sponte duty to provide an accomplice instruction regarding Monterossa. At most, the

evidence showed that (1) Monterossa followed Gomez while Gomez drove and parked

Lopez's vehicle, and (2) after Gomez parked, Monterossa gave him a ride to a liquor store

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and then to a house on Clay Avenue. There was no evidence that Monterossa helped to

take or drive the vehicle and aided, promoted or encouraged the crime. "Mere presence

at the scene of a crime which does not itself assist its commission or mere knowledge that

a crime is being committed and the failure to prevent it does not amount to aiding and

abetting." (In re Michael T. (1978) 84 Cal.App.3d 907, 911.) Further, "merely giv[ing]

assistance with knowledge of the perpetrator's criminal purpose" is not sufficient for

principal liability. (People v. Sully (1991) 53 Cal.3d 1195, 1227.) Based on the

evidence, Monterossa was at best an accessory. "A mere accessory is not liable as an

accomplice [citation], and a court is not obligated to given an accomplice instruction

when the evidence establishes that the witness was merely an accessory." (People v.

Snyder, supra, 112 Cal.App.4th at p. 1220.)

Gomez contends Monterossa must have been an accomplice because at the time of

trial, he changed the story he had originally given to officers and denied any knowledge

or involvement with the stolen vehicle. This evidence alone does not support accomplice

liability on Monterossa's part. There was no evidence that Monterossa aided and abetted

Gomez in taking or driving the vehicle or shared in Gomez's criminal intent. The

evidence in this case simply did not permit a finding that Monterossa was an accomplice

to Gomez's crime. Thus, the trial court had no sua sponte duty to instruct on accomplice

principles.

III. Sufficiency of the Evidence

Gomez argues insufficient evidence supported his convictions for attempted

burglary of Quiroz's Jeep (count 1), being an ex-felon in possession of ammunition

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(count 4), unlawfully taking and driving Lopez's Acura (count 5), burglary of Carranza's

residence (count 7), and theft of two firearms (counts 8 and 9).

A. General Legal Principles

" 'In reviewing a challenge to the sufficiency of the evidence . . . , we review the

entire record in the light most favorable to the judgment to determine whether it discloses

substantial evidence — that is, evidence that is reasonable, credible, and of solid value —

from which a reasonable trier of fact could have found the defendant guilty beyond a

reasonable doubt.' [Citation.] 'The appellate court presumes in support of the judgment

the existence of every fact the trier could reasonably deduce from the evidence.' "

(People v. Ramirez (2006) 39 Cal.4th 398, 464.) Reversal is not warranted "unless it

appears 'that upon no hypothesis whatever is there sufficient substantial evidence to

support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.) "[I]t is not

within our province to reweigh the evidence or redetermine issues of credibility."

(People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Likewise, reversal is not

warranted merely because the circumstances might also be reasonably reconciled with a

contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.) Our sole function is to

determine if any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. (People v. Bolin, supra, 18 Cal.4th at p. 331; People v.

Marshall (1997) 15 Cal.4th 1, 34.)

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B. Analysis

1. Attempted Burglary of Quiroz's Jeep (count 1)

Gomez argues insufficient evidence supported his conviction for attempted

burglary of Quiroz's vehicle because the meaning of the DNA evidence recovered from

the vehicle was speculation. We disagree.

Here, Quiroz heard someone trying to break into his Jeep. Quiroz scared the

person off and called the police. When an officer arrived, he found that someone had

tampered with the driver's side door lock and there was blood on the door handle.

Gomez's DNA matched the predominant DNA profile from the blood stain.

Gomez contends the DNA evidence was insufficient because a criminalist testified

it was possible that if one person touches an object and then another person touches the

same object, the first person's DNA could remain on the object and test as the

predominant DNA profile. Gomez asserts this testimony supports an inference that he

could have touched Quiroz's vehicle prior to the attempted burglary. It is, of course,

settled that a conviction cannot be based on mere speculation and conjecture. (People v.

Marshall, supra, 15 Cal.4th at p. 35 ["mere speculation cannot support a conviction"].)

However, the jury could have reasonably concluded that Gomez's DNA was on Quiroz's

vehicle because he tried to break into it. Unless it is clearly shown that "on no hypothesis

whatever is there sufficient substantial evidence to support the verdict," we will not

reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

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 2. Ex-Felon in Possession of Ammunition (count 4)

Gomez argues insufficient evidence supported his conviction of being an ex-felon

in possession of ammunition because the only evidence connecting him to the

ammunition found in Haffey's car was a partial DNA profile recovered from the

magazine and the evidence showed other people had access to the vehicle between the

time it was stolen and recovered.

Penal Code section 30305, subdivision (a)(1), makes it unlawful for a felon to

own, possess, or have under his custody or control, any ammunition or reloaded

ammunition. Here, Tate identified Gomez as having driven Haffey's Honda to burglarize

Rodriguez's home in August 2012. When officers recovered the vehicle a week later,

they found various items in it, including a bag of men's clothing, a beer can and a loaded

magazine for a nine millimeter firearm. A pair of sunglasses from the bag of clothing

and the beer can had DNA matching Gomez's profile on them. A criminalist was only

able to recover a partial DNA profile from the firearm magazine, but concluded it was

possible Gomez was a source of the DNA.

Based on the evidence, the jury could reasonably infer Gomez possessed and had

custody and control over the ammunition found in the vehicle. Gomez drove the vehicle

and officers found his personal belongings in the front and back seats. Gomez's DNA

was recovered from some of those items. He was also a possible contributor to a partial

DNA profile from the magazine. On the state of the evidence, a rational trier of fact

could conclude Gomez possessed or had custody or control over the magazine. Contrary

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to Gomez's argument, the jury's conclusion was not speculation or conjecture. Instead, it

was a reasonable inference based on the evidence.

3. Unlawfully Taking and Driving Lopez's Vehicle (count 5)

Gomez argues insufficient evidence supported his conviction for unlawfully taking

and driving Lopez's vehicle because no one saw him in it.

Officers observed a Lincoln vehicle closely following Lopez's vehicle. The cars

pulled over at a curb together and then the Lincoln drove away. Shortly thereafter,

officers contacted Monterossa, the driver of the Lincoln. Monterossa told officers that

Gomez drove Lopez's car. Gomez's DNA was on the gear shift and steering wheel of

Lopez's car. This evidence was sufficient to support the jury's verdict.

Gomez argues Monterossa's original statement to police was not credible and the

DNA evidence only established Gomez had been inside the car, not that he drove it.

Gomez's is essentially asking us to reweigh the evidence and make a credibility

determination. That is not within our province on appeal. (People v. Martinez, supra,

113 Cal.App.4th at p. 412.) Accordingly, we reject Gomez's argument.

4. Burglary of Carranza's Residence (count 7) and Firearm Thefts (counts 8 and 9)

Gomez argues insufficient evidence supported his conviction for burglary of

Carranza's residence and theft of two firearms from that residence because the only

evidence that connected him to the crimes was DNA on the screwdriver and shoes left

behind. Gomez contends the DNA evidence was insufficient because the screwdriver

contained a mixture of DNA from three people and the shoes contained DNA from four

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people. Gomez again points to the criminalist's testimony regarding DNA left on an

object after multiple people have touched it.

Gomez's argument calls for us to reweigh the evidence, which we will not do.

Here, the evidence showed that the burglar entered Carranza's residence through a

window and then ransacked the house. The burglar took a pair of valuable shoes and

used a screwdriver to pry open Carranza's gun safe and steal two guns from it. The

burglar left behind his own shoes and a screwdriver. It is undisputed that DNA matching

Gomez's DNA profile was on the screwdriver and shoes left in Carranza's residence.

Although the items contained a mixture of DNA from multiple people, Gomez was the

predominant contributor. The probability that a person selected at random would be

included as a possible major contributor was exceptionally small. Based on this

evidence, the jury could reasonably conclude that Gomez burglarized Carranza's

residence and used a screwdriver to pry open a gun safe to steal Carranza's two firearms.

IV. Alleged Prosecutorial Misconduct

Gomez argues the prosecutor committed multiple instances of prejudicial

misconduct, depriving him of due process and a fair trial. He asserts the prosecutor

misstated facts, introduced facts outside the record, vouched for a witness, and appealed

to the passions and prejudice of the jury.

Prosecutorial misconduct exists " 'under state law only if it involves " 'the use of

deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " '

" (People v. Earp (1999) 20 Cal.4th 826, 858.) In more extreme cases, a defendant's

federal due process rights are violated when a prosecutor's improper remark " ' " 'infect[s]

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the trial with unfairness,' " ' " making it fundamentally unfair. (Ibid.) However, " '[t]o

preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely

objection at trial and request an admonition . . . .' " (Ibid.) As an exception to this rule,

"[a] defendant will be excused from the necessity of either a timely objection and/or a

request for admonition if either would be futile. [Citations.] In addition, failure to

request the jury be admonished does not forfeit the issue for appeal if ' "an admonition

would not have cured the harm caused by the misconduct." ' " (People v. Hill (1998) 17

Cal.4th 800, 820.)

Defense counsel did not object to the statements that Gomez now claims to

constitute prosecutorial misconduct. Nothing in the record suggests that an objection

would have been futile. Further, if defense counsel had objected and asked for an

admonition, the jury could have been admonished to disregard the prosecutor's alleged

misstatements or the court could have otherwise alleviated the alleged error.

Accordingly, we conclude that because defense counsel did not object to the statements

that Gomez now assigns as prosecutorial misconduct, the issue is not preserved for

appeal.

Gomez attempts to avoid forfeiture by arguing defense counsel's failure to object

to the alleged prosecutorial misconduct at trial constituted ineffective assistance

warranting reversal. "Under both the Sixth Amendment to the United States Constitution

and article I, section 15, of the California Constitution, a criminal defendant has the right

to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) A

defendant claiming ineffective assistance of counsel has the burden to show: (1)

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counsel's performance was deficient, falling below an objective standard of

reasonableness under prevailing professional norms; and (2) the deficient performance

resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; Ledesma, at

pp. 216, 218.) We must decide if it is reasonably probable the result would have been

different without defense counsel's allegedly deficient behavior. (Strickland, at p. 694.)

However, we give substantial deference to counsel's tactical decisions during trial.

(People v. Frye (1998) 18 Cal.4th 894, 979.) We may dispose of an ineffectiveness claim

on the ground of lack of prejudice without determining whether his counsel's

performance was deficient. (Strickland, at p. 697; In re Fields (1990) 51 Cal.3d 1063,

1079.)

Here, Gomez has not established prejudicial ineffective assistance because the

prosecutor's comments did not amount to prejudicial misconduct. On Gomez's claim that

the prosecutor misstated the facts, three of the four instances were error but not

prejudicial. First, when listing items found in Haffey's recovered vehicle, the prosecutor

misinformed the jury that officers recovered a firearm. There was no evidence of a

firearm. Gomez contends the prosecutor's misstatement prejudiced him because it

injected an implication that he was armed during the crime. We conclude there is no

reasonable probability that the result of the proceedings would have been different had

defense counsel objected. The jury heard evidence that officers recovered a loaded

firearm magazine from the vehicle. The magazine evidence raised the same implication

as evidence of a firearm. Further, whether Gomez was armed was not an element of the

crimes of unlawfully taking and driving Haffey's vehicle and unlawful possession of

26
ammunition. On those crimes, the evidence overwhelmingly supported the jury's

verdicts.

Second, the prosecutor misstated the facts when she told the jury that sunglasses

and a bag of clothing in Haffey's vehicle had Gomez's DNA on them. In fact, only the

sunglasses had Gomez's DNA. It is unlikely that this misstatement impacted the jury's

verdict because the sunglasses were found within the bag of clothing. Although

technically a misstatement, it was not such that it prejudiced Gomez. Even if defense

counsel would have objected, the outcome of the proceeding would not have been

different because the prosecutor's misstatement was minor.

Third, the prosecutor misstated that officers saw Gomez get out of Monterossa's

Lincoln and proceed into a house. Gomez argues the misstatement resulted in prejudice

because it corroborated Monterossa's original story to the police that Gomez was with

Monterossa on the day of the crime, drove the stolen vehicle, and later got a ride to a

house. The prosecutor's statement did not result in prejudice because Monterossa

testified at trial that he was with Gomez, took him to a store, and then returned to the

house where he had picked Gomez up. Further, DNA evidence from the steering wheel

and gear shift of the stolen vehicle supported a conclusion that Gomez drove the vehicle.

Based on the state of the evidence, defense counsel's failure to object to the prosecutor's

statement did not result in prejudice such that it undermined confidence in the outcome.

As to Gomez's argument that the prosecutor misstated that the only DNA detected

matched Gomez's DNA profile, we conclude he has misinterpreted the statement by

taking it out of context. When the prosecutor stated that "you will see that every DNA

27
type they were able to detect matches the DNA on the defendant," she was contrasting

the strong DNA samples collected from certain evidence against the partial DNA

recovered from the firearm magazine. The prosecutor explained that it is harder to get

DNA from items a person merely touches with their hands than from items with blood,

sweat, tears, saliva and mucous membranes on them. She pointed out that the

predominant DNA profile from the sunglasses in Haffey's car matched Gomez.

However, the criminalist was only able to obtain a partial DNA profile from the firearm

magazine, an item likely only touched by the perpetrator. We find no misconduct in the

prosecutor's statement.

We also find no prejudice from defense counsel's failure to object to the

prosecutor's statement that Monterossa changing his story was "textbook" recanting.

Gomez contends the prosecutor introduced facts outside the record because there was no

testimony about a "textbook." Based on our review of the prosecutor's comment, we

conclude there is no reasonable probability that the jury construed the prosecutor's

statement in the manner Gomez suggests. "[C]ounsel during summation may state

matters not in evidence, but which are common knowledge or are illustrations drawn

from common experience, history or literature.' [Citation.] 'A prosecutor may

"vigorously argue his case and is not limited to 'Chesterfieldian politeness' " [citation],

and he may "use appropriate epithets . . . ." ' " ' " (People v. Stanley (2006) 39 Cal.4th

913, 951-952.) In this case, the prosecutor merely used a colloquial expression.

Next, we conclude the prosecutor did not inappropriately vouch for Tate's

credibility by stating in her rebuttal argument that he was "very careful," "very vigilant"

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and "excellent." Although a prosecutor may not vouch for a witness's veracity, she "may

assure the jury of a witness's apparent honesty or reliability based on matters in the

record." (People v. Woods (2006) 146 Cal.App.4th 106, 113.) In this case, defense

counsel had argued that Tate's identification of Gomez was unreliable because he only

observed the perpetrator briefly from far away and in poorly lit conditions. Thus, in

rebuttal, the prosecutor urged the jury to take into consideration that Tate testified in

great detail as to what he saw and was careful and vigilant in his observations. The

prosecutor's statement was not error because when evaluating a witness's testimony, the

jury can consider the witness's behavior while testifying, how well the witness was able

to remember things and how well the witness could see, hear or otherwise perceive the

things about which he testified. (CALCRIM No. 226.)

Lastly, Gomez contends the prosecutor appealed to the passions and prejudice of

the jury by remarking that Lopez and Garcia were hard-working, productive members of

society who earned the property Gomez stole from them. We conclude that even if the

prosecutor appealed to the passions and prejudice of the jury, the result of the proceeding

would not have been different had defense counsel objected. Overwhelming evidence

supported Gomez's convictions for unlawfully taking and driving Lopez's vehicle and

burglarizing Garcia's home. On the vehicle theft, Monterossa told officers that Gomez

had driven the stolen car, Gomez's DNA was on the steering wheel and gear shift, and

Gomez was located nearby.

Likewise, in the Garcia burglary, the burglar left behind an opened bottle of beer,

which had Gomez's DNA on it. The probability that the DNA was from someone else

29
was one in 1.2 sextillion. Further, the beer was a common feature of Gomez's residential

burglaries. The residential burglaries also had other shared characteristics, including

evidence that the perpetrator may have entered through a window and ransacked the

homes.

Given the overwhelming evidence of Gomez's guilt, it was not reasonably

probable the result would have been different had defense counsel objected when the

prosecutor remarked about Gomez stealing from hard working people who earned their

belongings. Even looking at the alleged prosecutorial misconduct in totality, this is not a

case where the prosecutor used deceptive or reprehensible methods to persuade the jury

or where the prosecutor's remarks infected the trial with such unfairness that it made the

trial fundamentally unfair. (People v. Earp, supra, 20 Cal.4th at p. 858.)

V. Prison Prior Warnings

A. Background

After the jury rendered its verdicts, defense counsel informed the court that

Gomez was willing to admit five prison priors allegations. The trial court advised Gomez

that he had the right to a trial to determine the fact of the prior convictions, the right to

remain silent, and the right to confront adverse witnesses. Gomez stated that he

understood those rights and waived them. The court accepted Gomez's admissions and

found the prison priors to be true. Later, the court sentenced Gomez to one year for each

prison prior, for a total of five years on the enhancements.

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B. Analysis

Gomez argues the trial court failed to warn him that a direct consequence of

admitting his prior convictions would be to subject him to a longer prison term. The

Attorney General concedes that Gomez received an incomplete advisement of the

consequences of his admission. The parties disagree, however, as to the proper remedy.

Before accepting a defendant's admission to a prior prison term allegation, the trial

court should "advise the defendant and obtain waivers of (1) the right to a trial to

determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right

to confront adverse witnesses. (In re Yurko (1974) 10 Cal.3d 857, 863.)" (People v.

Mosby (2004) 33 Cal.4th 353, 356.) The trial court should also tell the defendant "the

precise increase in the term or terms which might be imposed, if any, in the accused's

case pursuant to . . . applicable statutes." (Yurko, at p. 864.) If an express waiver of the

rights is not secured from the defendant, reversal is required unless the record as a whole

shows the admission was voluntary and intelligent under the totality of circumstances.

(Mosby, at pp. 360-361.) "The record must clearly reflect both the admonitions given the

accused and the fact of the accused's waivers, if any." (Yurko, at p. 865.)

When a defendant stipulates to a prior conviction without proper advisements, the

stipulation must be set aside. (People v. Cross (2015) 61 Cal.4th 164, 180.) The remedy

for the error is reversal as to the prior conviction enhancements and remand for a new

trial on that issue only. (People v. Moore (1992) 8 Cal.App.4th 411, 422.) Because the

trial court did not advise Gomez that a direct consequence of admitting his prison priors

was to subject him to a longer prison term, his admissions must be set aside.

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Accordingly, the trial court's true findings on these allegations and the imposed sentence

enhancements under Penal Code section 667.5, subdivision (b), must be reversed and the

matter remanded for a new adjudication of these allegations either by admission or trial,

and for resentencing.

DISPOSITION

The convictions are affirmed. The true findings on the prison prior allegations are

reversed and the matter remanded to the trial court for a new adjudication of these

allegations under Penal Code section 667.5, subdivision (b), either by admission or trial,

and for resentencing thereafter.

NARES, Acting P. J.

WE CONCUR:

McDONALD, J.

PRAGER, J.*

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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