P. v. Castillo

Appendix A
1
Filed 11/30/06 P. v. Castillo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ERIC CASTILLO,
Defendant and Appellant.
E039686
(Super.Ct.No. RIF118575)
OPINION
APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy,
Judge. Affirmed.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-
Ladendorf, Supervising Deputy Attorney General, and Raymond M. DiGuiseppe, Deputy
Attorney General, for Plaintiff and Respondent.

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If this were a book by Erle Stanley Gardner, it would be called The Case of the
Corona Cat Burglar. In late July and early August 2004, defendant Eric Castillo
committed a string of daring burglaries in the Corona area, breaking into houses in the
middle of the night, while the inhabitants were home but asleep, and stealing electronic
devices, purses, and vehicles.
Perry Mason, however, never lost a case. Defendant, on the other hand, stands
convicted on nine counts of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)), two
counts of attempted first degree burglary (Pen. Code, §§ 459, 460, subd. (a), 664, subds.
(a), (d)), two counts of unlawful taking or driving of a vehicle (Veh. Code, § 10851,
subd. (a)), and one count of reckless evading (Veh. Code, § 2800.2). The trial court
sentenced him to a total of 20 years in prison.
In this appeal, defendant contends:
1. The admission of testimony that defendant’s girlfriend’s statements to the
police failed to corroborate defendant’s own statements to the police violated the
principles stated in Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158
L.Ed.2d 177] (Crawford).
2. In light of the testimony concerning defendant’s girlfriend’s statements to the
police, the trial court erred by failing to give accomplice instructions.
3. Defendant’s statements to the police should have been suppressed because the
police did not advise him of his right to communicate with the Mexican consulate.

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4. With respect to the burglary and attempted burglary charged in counts 7 and 8,
there was insufficient evidence of defendant’s identity as the burglar.
5. With respect to the burglary charged in count 11, the trial court erred by failing
to instruct on the lesser included offense of attempted burglary.
6. With respect to the reckless evading charged in count 14, the trial court erred
by failing to instruct on the definition of “distinctively marked.”
7. In imposing an upper-term sentence on the principal count and consecutive
sentences on all other counts, the trial court violated the principles stated in Blakely v.
Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely).
We will agree that the admission of the evidence concerning defendant’s
girlfriend’s statements to the police violated Crawford (although defense counsel waived
the error by failing to object on constitutional grounds below). We will also agree that
the trial court erred by failing to give accomplice instructions. Furthermore, we will
agree that the trial court erred by failing to define “distinctively marked.” All three
errors, however, were harmless under even the most stringent standard. We find no other
error. Accordingly, we will affirm.
I
FACTUAL BACKGROUND
A. July 23, 2004: Morton Burglary (Counts 1 & 5).
The Morton family lived in a house on Pueblo Road in Corona. On July 23, 2004,
at 12:00 or 12:30 a.m., Paul Morton got up to get some water and discovered that the

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house had been burglarized. The burglar had entered through an unlocked door between
the garage and a bathroom and exited through the front door, leaving it wide open. A
computer, a DVD player, a Direct TV receiver, three digital cameras, CD’s, DVD’s, and
two purses had been taken. The Mortons’ silver 2001 Toyota Corolla had also been
taken; the keys to it had been in one of the purses. Some cookies and a bottle of grape
Juicy Juice were missing from the garage.
Around 9:00 a.m., the police found the Corolla, parked near Ridgeview Avenue
and Holmes Avenue in Mira Loma. A 10-year-old boy who lived nearby told police that
he saw a Hispanic male, aged 30 to 40, of medium height, get out of the car and run
through his backyard. The bottle of grape Juicy Juice was found in the car, and
defendant’s fingerprints were found on the bottle.
One Larry Swick lived in a house on Marlatt Street in Mira Loma (not far from
where the Corona was found). He testified that defendant came over to his house several
times. He let defendant store “a bag full of stuff” in his home, on top of a bunk bed.
Once, defendant brought over a white car -- possibly a Corolla.
Colleen Saybrook testified that, on either July 23 or 24, she saw defendant in
Swick’s front yard. Defendant offered to sell her various electronic items that were in the
open trunk of a silver Corolla. The only other persons present were Swick and a male
friend of Saybrook’s. Nobody was holding a weapon or threatening defendant.
Saybrook bought a DVD player and a camera from defendant. Her fingerprints were
later found on a slide viewer in the trunk of the Mortons’ Corolla.

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After defendant was arrested, he admitted to the police that he entered the Morton
house, stole the Corolla, drank some juice and ate some cookies that he claimed were
already in the car, then left the car near Swick’s house.
B. July 27, 2004: Dellenbach Burglary (Count 2).
The Dellenbach family lived in a house on Locust Street in Corona. On July 27,
2004, around 5:00 a.m., 17-year-old Justine Dellenbach awoke because the family dog,
which had been sleeping in her bedroom, was whining. She opened the bedroom door
for him. He went downstairs and began barking. She looked out of her upstairs bedroom
window and, she testified, saw “someone leaving our house.”
The barking woke Justine’s mother Christine Dellenbach. When Christine said,
“Show me,” the dog led her out to the front porch. She then saw a man across the street,
walking away, carrying a box-like object on his shoulder. She described him as being of
medium height, with dark hair. The burglar had entered through a rear sliding glass door,
which may have been left unlocked, and exited through the front door, which had been
locked, leaving it ajar. He took a computer and a pair of tennis shoes.
On July 31, 2004, the police searched Swick’s house; they found the Dellenbachs’
computer printer on top of the bunk bed.
Defendant admitted to the police that he entered the Dellenbach house and took a
computer from their living room. He said that their dog barked and scared him away.

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C. July 30, 2004: Multiple Burglaries.
1. Tsuei Burglary (Count 10).
Wendy Tsuei lived in a house on Ridgeview Terrace in Corona. On July 30, 2004,
around 2:00 or 2:30 a.m., she was awakened by her house alarm. Her sliding glass door
had been opened, which would have set off the alarm. No property was missing.
Defendant admitted to police that he opened Tsuei’s rear sliding glass door; he
said the alarm went off, and that scared him away.
2. Salgero Burglary (Count 12).
The Salgero family lived in a house on Via Santiago in an unincorporated area just
outside Corona. On July 30, 2004, a Kawasaki VCR/DVD player and a Harley-Davidson
telephone were taken from the house. A side door was left wide open; outside a rear
sliding door, a baseball cap was found.
Defendant admitted to police that he entered the Salgero house and took a CD
player and a telephone.
3. Gutierrez Burglary (Count 9).
The Gutierrez family lived in a house on the corner of Via Santiago and Via Felipe
in Corona. On July 30, 2004, sometime between 2:00 and 3:00 a.m., 12-year-old Valerie
Miranda, who was lying on a loveseat in the living room, heard a sound in the hallway.
Defendant, holding a flashlight, then came from the hallway into the living room. He
picked up a purse and started rifling through it. Valerie could see his face by the light of
the flashlight. He went into the kitchen, then ran out of the kitchen door.

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Valerie’s father Octavio Gutierrez was asleep in his truck, in the garage, after an
argument with his wife. He awoke to find a Hispanic male, in the doorway from the
house, shining a flashlight around the garage. Gutierrez yelled, “Hey.” The burglar then
ran back into the house and out the back door. Gutierrez testified that defendant looked
“kind of” like the burglar.
The burglar had entered through an open bedroom window, after removing the
screen. No property was missing. However, a purse that had been in the living room was
found on the floor in the doorway to the garage. Also, the Salgeros’ Kawasaki
VCR/DVD player and Harley-Davidson telephone were found in the front yard, just
outside the bedroom window.
Defendant admitted to police that he entered the Gutierrez house, looked though
some purses, and left behind some property from the Salgero house.
4. Haworth Burglary (Count 11).
The Haworth family lived in a house on Via Santiago in Corona. On July 30,
2004, around 3:00 a.m., Bartley Haworth was awakened by his wife, who said she heard
noises like someone trying to break in coming from their utility porch. She had turned on
all the outside lights, and the noises had stopped.
The utility porch was fully enclosed and roofed. It housed a washer, a dryer, and a
freezer. It had one door to the backyard and another door into the kitchen of the house.
A window screen to the porch had been pushed in and broken. An attempt had been

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made to jimmy the lock on the kitchen door. The door to a shed in the backyard had been
opened, and various tools had been taken out of it but were left behind in the yard.
Defendant admitted to police that he removed screens from the Haworths’ utility
porch in an attempt to enter the house.
5. Allen Burglary (Count 4).
The Allen family lived in a house on Live Oak Place in Corona. On July 30,
2004, around 4:45 a.m., Molly Allen was asleep in an upstairs bedroom when she heard
someone walking around. Meanwhile, her 17-year-old daughter Melissa woke up
because someone walked into her upstairs bedroom. Assuming it was her father, she
went back to sleep.
The Allens’ dog started barking. Melissa woke up again and realized that
someone holding a flashlight was looking behind a computer monitor on her desk.
Meanwhile, Molly heard someone running. When she went to see what was going on,
she found a computer from Melissa’s room and a heater from her other daughter’s room
in the hallway.
The burglar had entered the garage through the garage door, which had been left
partly open. He had rummaged through Molly’s purse, which was in her car in the
garage. He had placed a television, a camcorder, and a radio that were in the garage
inside the Allens’ van. The keys to the van, which had been in the van, were missing.
The burglar had then entered the house through a connecting door from the garage.
Finally, he ran out the front door, leaving it wide open.

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Defendant admitted to police that he went into the Allen house.
6. Miller Burglary (Count 8).
The Miller family lived in a house on Sapphire Lane in Corona. On July 30, 2004,
between 4:45 and 5:30 a.m., a burglar entered the house through a living room window
that had been left partially open, but locked. Accordingly, the burglar had entered the
garage via the unlocked garage door, taken a pair of pliers, and used the pliers to remove
the lock on the window. He left the pliers on top of the window screen, which he had
removed and left on the ground. He took a camera and two purses from the house.
Defendant denied entering the Miller house.
7. Evans Attempted Burglary (Count 7).
The Evans family lived in a house on Sapphire Lane in Corona. On July 30, 2004,
between 5:15 and 5:30 a.m., Angelique Evans heard her dogs in the backyard barking.
When she went to investigate, she found that the gate to the backyard had been opened.
She saw someone running away from her house and across the street. A metal hook or
clip that the Evanses used to secure the gate was missing; the police later found it near
the Macias house (see below).
Defendant denied entering the Evans house.
8. Macias Burglary (Counts 3 & 6).
The Macias family lived in a house on Sapphire Lane in Corona, across the street
from the Evans family. On July 30, 2004, sometime before 5:45 a.m., a burglar entered
the Macias house by removing the screen from a dining room window that had been left

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open. The burglar then entered the garage and drove off in the Maciases’ white 1993
Toyota pickup truck, which contained a wallet, a white hard hat, and tools (including two
compressors) worth $11,000. The keys to the pickup had been taken from a closet inside
the house.
Defendant admitted to police that he entered the Macias house and stole the
pickup.
When the police searched Larry Swick’s house, they found tools and other items
from the Maciases’ truck.
9. Police Chase (Count 14).
On the night of July 30-31, 2004, based on information from Colleen Saybrook,
the police staked out Swick’s house. At 2:15 a.m., they saw the Maciases’ pickup arrive.
At 4:40 a.m., when it left again, a police officer in an unmarked car followed it.
A police officer in a marked patrol car soon joined in the pursuit. He turned on his
lights and sirens, but the driver of the pickup did not stop. As the officer followed the
pickup, it drove on the wrong side of the road for about 100 yards; it also went over the
posted speed limit. It went down a dirt road through a field, at an unsafe speed for the
conditions. Finally, it slid down a dirt embankment and crashed. The driver got out and
ran. The officer chased him on foot, but he got away.
Defendant’s fingerprints were found on a white hard hat in the pickup and on the
outside of the tailgate of the pickup. He admitted to the police that he had been driving
the pickup.

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D. August 9, 2004: Mejia Burglary (Count 13).
The Mejia family lived in a house on Peacock Lane in Riverside. On August 9,
2004, at 4:00 a.m., Gabriel Mejia was awakened by his dogs barking, but he went back to
sleep. The next morning, Mejia discovered that a burglar had taken various items,
including a DVD player, a jukebox, and his daughter’s purse. A rear sliding glass door,
which had been left unlocked, was open an inch or two; the garage door was also open.
E. August 9, 2004: Defendant’s Arrest.
On August 9, 2004, around 2:30 p.m., a police officer spotted defendant standing
by a red Honda at a 7-Eleven in Corona. Two other people -- defendant’s girlfriend
Daisy Deleon and one Javier Rodriguez -- were in the car. Defendant admitted that the
car belonged to him. Defendant was arrested. Inside the car, the police found property
taken from the Mejia house. They also found latex gloves.
When the police interviewed defendant, he said four other men, including “Juan,”
“Pancho” and “Pablo,” had forced him to commit the burglaries: “[T]hey threatened me,
they killed me [sic], they stabbed me. They all beat me . . . .” As a result, he had “blood
in [his] eyes.” They had tied him up, thrown gasoline and acid on him, and burned him.
At the interview, however, he had no visible burns or other injuries, even though he was
wearing a short-sleeved t-shirt and shorts, nor did he offer to display any.
Defendant said the men would wait for him outside and watch him through
binoculars. Some of them carried guns or knives. However, he also said they would go
inside the houses with him and watch him. He did not call the police because the men

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pointed guns at him. He admitted, however, that, during at least one burglary, the only
person with him was Daisy Deleon.
The men would take the loot away from him. They gave him tools, which he
traded for methamphetamine. They also gave him food and drugs. He said, “I just steal
. . . to eat . . . or for drugs . . . .” When asked, “[W]hat was the reason you were stealing
from these houses?,” he replied, “I just wanted, well[,] cloth[e]s or like that.”
The particulars of defendant’s story kept changing. For example, at first, he said
the other men just showed up with the Maciases’ pickup. Next, he admitted being
present when the pickup was taken. Finally, he admitted taking the pickup himself.
Similarly, at first, defendant said it was the other men who took the Moltons’ Corolla.
Then he admitted taking it himself, although he still claimed that they gave him the keys
and they put the loot in the car.
At one point, defendant said that when the alarm went off (apparently referring to
the Tsuei house), the other men left in a car, but he left on foot; he did not see them again
until the next day. However, when the police asked him about other burglaries that night,
he said the other men came back an hour or two later and picked him up.
Defendant said these men lived among some trees under a freeway overpass, near
Grand Boulevard and Third Street, and in some nearby houses. He offered to take the
police to them. After the interview, the police drove defendant around while defendant
pointed out houses he had burglarized. However, he did not take them to the men who
had threatened him, nor did he point out any house in which they lived.

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The police looked in the area around the overpass and spoke to people at nearby
businesses. However, they found no evidence that anybody was living there.
Most of the burglaries took place within a few blocks, and all of them within a few
miles, of each other. (See Appendix A, post, p. 30.) No usable fingerprints were found
at the scene of any of the burglaries.
F. Defense Evidence.
Robert Halverson testified that he first met defendant in July 2004. A few weeks
later, but still in July, defendant showed up at Halverson’s house with “cuts and burns all
over his body.” The whites of his eyes were completely red. There was bruising and
swelling around his eyes. Halverson photographed defendant’s eye area, but did not
photograph his other injuries. After Halverson heard that defendant had been arrested, he
contacted the police.
Defendant admitted to Halverson that he was using drugs. He also admitted that
he was selling stolen property, which he said he had gotten from “friends” who wanted
him to sell it for them.
Larry Swick testified that he first met defendant in mid-July. At that time,
defendant was homeless and living under a freeway overpass in Norco. Defendant
appeared to have been beaten, because the whites of his eyes were completely red. He
also had a burn on one hand.

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II
DAISY DELEON’S STATEMENTS
Defendant contends the trial court erred by allowing a police officer to testify
regarding out-of-court statements by defendant’s girlfriend, Daisy Deleon. Defendant
also contends the trial court erred by failing to instruct on accomplice testimony.
A. Additional Factual and Procedural Background.
Defendant told the police that Deleon had been with him during one or two of the
burglaries. When asked why, he said, “She was driving.”
Deleon refused to testify. Initially, she cited the Fifth Amendment; however, even
after the prosecutor offered her immunity and the trial court ordered her to testify, she
still refused, in the presence of the jury, and she was held in contempt.
Defense counsel objected to the admission of Deleon’s statements to the police,
explaining, “I have no opportunity to cross-examine the witness,” and citing Crawford.
The trial court responded, “ . . . I think you’re right. But we’ll deal with that tomorrow.
Just be prepared to discuss that tomorrow morning . . . .”
Later that same day, however, a police officer testified that he had interviewed
Deleon, and that she had answered all of his questions. He was then asked:
“Q Did Daisy Deleon provide any corroboration of the defendant during [sic;
sc. “doing”] the burglaries as a result of being threatened?
“A Yes.
“[DEFENSE COUNSEL]: Objection. Hearsay.

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“THE COURT: Overruled.
“Q (BY [THE PROSECUTOR]) She did provide corroboration that the
defendant did burglaries while being threatened?
“A Oh, no, not while being threatened, no.
“Q Was she able to verify any of the information about him being threatened?
“A No.”
The next morning, defense counsel said, “ . . . I didn’t want to bring this up in
front of . . . the jury yesterday, but I would ask the Court to admonish the People.” He
explained that the officer had “slipped in” some of his interview of Deleon, even though
defense counsel “ha[d] had no opportunity to cross-examine [her] . . . .” The trial court
did not remember the testimony. It did rule, however, that her statements to the officer
were inadmissible, because “that’s an end-run around Crawford . . . .” (Italics added.)
B. Testimony about Deleon’s Out-of-Court Statements.
Defendant argues that the officer’s testimony that Deleon’s statements had failed
to corroborate defendant was inadmissible hearsay and that its admission violated the
confrontation clause.
The officer’s testimony about Deleon’s failure to corroborate defendant was
indeed hearsay. It supplied information about the content of her out-of-court statements,
albeit in the form of testimony about what they did not contain. Moreover, although
hearsay is defined, in part, as a “statement” (Evid. Code, § 1200, subd. (a)), a
“statement,” in turn, includes “nonverbal conduct of a person intended by him as a

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substitute for oral or written verbal expression.” (Evid. Code, § 225, subd. (b).)
Accordingly, silence, when offered to prove the nonexistence of a fact not asserted, is
hearsay. (See, e.g., Evid. Code, § 1272; People v. Preston (1973) 9 Cal.3d 308, 314;
Carlston v. Shenson (1941) 47 Cal.App.2d 52, 55-56.) We have not found any applicable
hearsay exception. (Because we conclude that the evidence was inadmissible hearsay,
we need not consider defendant’s alternative contention that it was improper opinion
testimony.)
Also, Deleon’s statements to the police were undoubtedly “testimonial” within the
meaning of Crawford. (See Davis v. Washington (2006) ___ U.S., ___, ___ [126 S.Ct.
2266, 2273-2274].) Deleon was unavailable to testify at trial, and defendant had had no
previous opportunity to cross-examine her. Accordingly, the admission of the officer’s
testimony about her out-of-court statements violated the federal confrontation clause.
(Crawford v. Washington, supra, 541 U.S. at pp. 53-56.)
The People argue that defendant waived any contention based on the confrontation
clause by failing to object on this ground at trial. We agree. (Evid. Code, § 353, subd.
(a).) A hearsay objection is insufficient to preserve a confrontation clause claim. (People
v. Burgener (2003) 29 Cal.4th 833, 869.) Moreover, when defense counsel did raise the
confrontation clause issue, even belatedly, he did not move to strike the testimony; he
merely asked the trial court to admonish the prosecutor not to elicit such evidence again.
We also believe that the error was harmless under any standard. A violation of the
federal confrontation clause requires reversal unless it was harmless beyond a reasonable

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doubt. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684 [106 S.Ct. 1431, 89 L.Ed.2d
674].) Among the “factors courts should consider in determining whether such an error
is harmless beyond a reasonable doubt . . . are ‘the importance of the witness’ testimony
in the prosecution’s case, whether the testimony was cumulative, the presence or absence
of evidence corroborating or contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted, and, of course, the overall
strength of the prosecution’s case.’” (People v. Mitchell (2005) 131 Cal.App.4th 1210,
1225, fns. omitted, quoting Van Arsdall, at p. 684.)
Defendant admitted committing nearly all of the burglaries; his main defense was
duress. His duress claim, however, was not credible. His story kept changing, then
changing again, always in the direction of admitting that he did more, while the mystery
men who forced him to commit the burglaries did less.
Defendant told police that the mystery men waited outside the houses; if so, all he
had to do was call the police while he was inside. Of course, he contradicted himself by
also claiming that they entered the houses with him. None of the burglary victims,
however, saw more than one burglar. When defendant was seen getting out of the
Mortons’ Corolla, no one was with him. He even admitted that when he crashed the
Maciases’ pickup and ran away, there was no one with him. Saybrook testified that when
defendant offered to sell her stolen goods, none of the mystery men were present and no
one was threatening him.

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Defendant also claimed that the mystery men had stabbed him, cut him, and
burned him. However, he had no visible injuries, nor did he offer to show the police any
injuries that were not visible. Similarly, while defendant kept telling the police that he
could take them to the mystery men, he failed to do so, and they could not find any
evidence that the men ever existed.
Admittedly, Robert Halverson corroborated defendant’s testimony that he had
been beaten and burned. However, his testimony actually hurt defendant more than it
helped, because, although Halverson had meticulously photographed defendant’s
bloodshot eyes, he had not bothered to photograph any of defendant’s other supposed
injuries. Larry Swick likewise testified that defendant had been beaten, but he admitted
that he based his testimony solely on defendant’s bloodshot eyes.
Finally, the jury could properly consider Deleon’s very refusal to testify as
evidence that she would not corroborate defendant. Once she had been offered
immunity, she no longer had any constitutional privilege not to testify. Her refusal to
therefore was admissible nonhearsay evidence that, if she were to testify, her testimony
would not support defendant’s duress claim. (See Sen. Com. on Judiciary, com. on
Assem. Bill No. 3212 (1965 Reg. Sess.) reprinted at 29B pt. 4 West’s Ann. Evid. Code
(1995 ed.) foll. § 1200, p. 4 [nonassertive conduct is admissible nonhearsay evidence to
prove the actor’s belief in a fact, and hence to prove that the fact believed is true].)
In this context, the testimony regarding Deleon’s out-of-court statements was
essentially cumulative. The testimony itself was brief. By the very next morning, the

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trial court had forgotten all about it. Defense counsel evidently did not consider it
particularly prejudicial, because he did not move to strike it. Neither the prosecutor nor
defense counsel referred to it in closing argument. Apparently the jury did not consider
defendant’s guilt to be a close question at all; it returned its verdicts after little more than
three hours of deliberations. We are therefore convinced, beyond a reasonable doubt,
that the admission of this evidence did not contribute to the verdict in any way.
C. Failure to Give Accomplice Instructions.
Whenever the testimony of an accomplice has been introduced, the trial court must
give jury instructions defining “accomplice.” (E.g., CALJIC Nos. 3.10, 3.14, 3.15, 3.17.)
It must also instruct that an accomplice’s incriminating testimony must be viewed with
caution (e.g., CALJIC No. 3.18) and must be corroborated (e.g., CALJIC Nos. 3.11, 3.12,
3.13). (People v. Hayes (1999) 21 Cal.4th 1211, 1270-1271 and 1271, fn. 17; see also
People v. Zapien (1993) 4 Cal.4th 929, 982.)
An “accomplice,” for this purpose, is defined as “one who is liable to prosecution
for the identical offense charged against the defendant . . . .” (Pen. Code, § 1111; see
also People v. Avila (2006) 38 Cal.4th 491, 564-565.) Accomplice “testimony” includes
“‘“all out-of-court statements of accomplices . . . used as substantive evidence of guilt
which are made under suspect circumstances. The most obvious suspect circumstances
occur when the accomplice has been arrested or is questioned by the police.”’
[Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 555, italics omitted, quoting People

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v. Williams (1997) 16 Cal.4th 153, 245, quoting People v. Jeffery (1995) 37 Cal.App.4th
209, 218.)
Defendant told the police that Deleon drove him to the sites of one or two of the
burglaries. He also told them that, on the night of July 29-30, she brought along two
male “friends” (evidently meaning some of the men who had been threatening him).
After one of them opened Tsuei’s sliding glass door and set off the alarm, Deleon drove
them away. Although this evidence did not prove that Deleon was defendant’s
accomplice as a matter of law, it was sufficient to require the trial court to give
accomplice instructions.
Once again, however, the error was harmless under any standard. In part II.B,
ante, we held that the admission of the officer’s testimony regarding Deleon’s statements
was harmless beyond a reasonable doubt. We now conclude, for the same reasons, that
the trial court’s failure to instruct the jury to discount that same evidence was equally
harmless.
III
FAILURE TO COMPLY WITH THE VIENNA CONVENTION
Defendant contends that, because the police failed to advise him that he had a right
to communicate with the Mexican consulate, his subsequent statements to them were
inadmissible. Anticipating the counterargument that his trial counsel waived this
contention by failing to move to suppress the statements on this ground, he also contends
that this failure constituted constitutionally ineffective assistance.

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Under the Vienna Convention on Consular Relations (Vienna Convention), the
“competent authorities” must, “without delay,” inform a foreign national who has been
arrested or detained that he or she has the right to communicate with his or her consulate.
(T.I.A.S. No. 6820, 21 U.S.T. 77, art. 36(1)(b).) Penal Code section 834c was enacted in
1999 to implement the Vienna Convention. It provides, as relevant here: “[E]very peace
officer, upon arrest and booking or detention for more than two hours of a known or
suspected foreign national, shall advise the foreign national that he or she has a right to
communicate with an official from the consulate of his or her country . . . .” (Pen. Code,
§ 834c, subd. (a).)
Alas for defendant, two months after he filed his opening brief, the United States
Supreme Court held that a violation of the notice provision of the Vienna Convention
does not require the suppression of an arrestee’s subsequent statements as a remedy.
(Sanchez-Llamas v. Oregon (2006) ___ U.S. ___ [126 S.Ct. 2669, 165 L.Ed.2d 557].)
Defendant has waived the argument that Penal Code section 834c independently requires
suppression by failing to raise it in his reply brief. In any event, the reasoning of
Sanchez-Llamas convinces us that state law does not require suppression, either.
Accordingly, the trial court did not err by admitting defendant’s statements, and his trial
counsel did not render ineffective assistance in this regard.

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IV
THE SUFFICIENCY OF THE EVIDENCE OF THE BURGLARY AND
ATTEMPTED BURGLARY THAT DEFENDANT DID NOT ADMIT
Defendant contends there was insufficient evidence to support his convictions on
count 7 (Evans attempted burglary) and count 8 (Miller burglary). Although defendant
admitted entering or attempting to enter all of the other homes that he allegedly
burglarized, he denied entering or attempting to enter the Evans and Miller homes.
“We often address claims of insufficient evidence, and the standard of review is
settled. ‘A reviewing court faced with such a claim determines “whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” [Citations.]
We examine the record to determine “whether it shows evidence that is reasonable,
credible and of solid value from which a rational trier of fact could find the defendant
guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.”’ [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 22, quoting
People v. Catlin (2001) 26 Cal.4th 81, 139, quoting Jackson v. Virginia (1979) 443 U.S.
307, 319 [99 S.Ct. 2781, 61 L.Ed.2d 560], People v. Wader (1993) 5 Cal.4th 610, 640,
and People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Here, on the night of July 29-30, 2004, defendant committed a string of burglaries,
all in a single Corona neighborhood. In these, and in other burglaries, his general modus

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operandi was to enter a house while the inhabitants were asleep, using an unlocked
garage door, sliding glass door, or window. Among the items he preferred to take were
electronic devices (including, in the Morton burglary, cameras) and purses. He never left
any fingerprints at the houses, evidently because he wore gloves.
Around 4:45 a.m., defendant finished burglarizing the Allen house on Live Oak
Place. Sometime between 4:45 and 5:30 a.m., a burglar entered the Miller House on
Sapphire Lane, just two or three blocks away. This entry was made through a partially
open window. When the burglar realized that the window was locked, he entered the
garage, through the unlocked garage door, to get some pliers, and used them to remove
the lock from the window. He took a camera and two purses. He left no fingerprints.
Sometime between 5:15 and 5:30 a.m., a prowler entered the backyard of the
Evans house, also on Sapphire Lane, but was scared away by barking dogs. Angelique
Evans saw someone running away across the street. He left no fingerprints.
Finally, sometime before 5:45 a.m., defendant entered and burglarized the Macias
house, which was also on Sapphire Lane, just across the street from the Evans house.
The metal clip the prowler had had to remove in order to open the Evanses’ gate was
found outside the Macias house.
Given the similarities between these burglaries, in terms of time, place, and modus
operandi, it is not merely a reasonable inference that defendant committed them all -- it is
almost certain. To conclude otherwise, we would have to suppose that a second cat

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burglar chose to operate in the same place and at the same time as defendant, literally
crossing his path.
Although defendant denied entering or trying to enter these two particular houses,
the jury was not required to believe him. He could have had other reasons for denying
this -- because he wanted to lessen his culpability, or simply because he forgot.
We therefore conclude that the convictions on counts 7 and 8 were supported by
substantial evidence.
V
FAILURE TO INSTRUCT ON ATTEMPTED BURGLARY
AS A LESSER INCLUDED OFFENSE
OF THE BURGLARY CHARGED IN COUNT 11
Defendant contends that, in connection with count 11 (Haworth burglary), the trial
court erred by failing to instruct on the lesser included offense of attempted burglary.
Defendant did enter the Haworths’ utility porch, but he was scared away before he was
able to enter the house proper. Accordingly, this issue turns on whether there was
substantial evidence that the utility porch was not a “house, room, . . . or other building”
within the meaning of Penal Code section 459.
“[A] building’s outer boundary includes any element that encloses an area into
which a reasonable person would believe that a member of the general public could not
pass without authorization. Thus, whereas decisions treat an ‘ordinary, unenclosed front
porch’ of a house [citation] as not part of the building’s outer boundary, because a

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reasonable person usually would believe that a member of the general public did not need
authorization to pass onto such a porch, they treat a screen door to an enclosed porch of
a house [citations] and a locked gate covered with iron mesh in front of an enclosed and
roofed front stairway of a house [citation] as part of the building’s outer boundary,
because a reasonable person usually would believe that a member of the general public
needed authorization to walk through such a screen door or gate.” (People v. Valencia
(2002) 28 Cal.4th 1, 11, fn. omitted, italics added, quoting People v. Brown (1992) 6
Cal.App.4th 1489, 1497.)
Defendant does not appear to be arguing that the jury could have found that he did
not actually enter the porch. To the contrary, he concedes that “[t]he evidence here
established that appellant had gained entry to the utility porch . . . .” That evidence
included the fact that the door between the porch and the house had been damaged in an
attempt to jimmy the lock.
The utility porch was fully enclosed and roofed over. The door between the porch
and the outside world was locked; defendant had to remove a window screen to get in.
Thus, the utility porch was not analogous to an ordinary, unenclosed front porch; rather,
it was analogous to an enclosed porch with a screen door. No reasonable person would
have believed that the porch was open to the general public. As a matter of law, by
entering the utility porch, defendant entered a building.
We therefore conclude that the trial court had no duty to instruct on attempted
burglary in connection with count 11.

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VI
FAILURE TO DEFINE “DISTINCTIVELY MARKED”
Defendant contends that, in connection with count 14 (reckless evading), the trial
court erred by failing to instruct on the definition of “distinctively marked.”
Reckless evading requires, among other things, that the pursuing peace officer’s
vehicle be “distinctively marked.” (Veh. Code, §§ 2800.1, subd. (a)(3), 2800.2, subd.
(a)(1).) While this appeal was pending, our Supreme Court held that a vehicle is
“distinctively marked,” for this purpose, “if its outward appearance during the pursuit
exhibits, in addition to a red light and a siren, one or more features that are reasonably
visible to other drivers and distinguish it from vehicles not used for law enforcement so
as to give reasonable notice to the fleeing motorist that the pursuit is by the police.”
(People v. Hudson (2006) 38 Cal.4th 1002, 1010-1011, fn. omitted.) It further held that,
because this definition of “distinctively marked” differs from its definition in “common
parlance,” the trial court has a duty to instruct on it sua sponte. (Id. at pp. 1011-1013.)
Here, the trial court failed to instruct on the legal definition. As the trial predated
Hudson, this was understandable. Nevertheless, it was error.
The applicable harmless error test is “whether it appears ‘“‘beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtained.’”’
[Citation.] ‘“To say that an error did not contribute to the verdict is . . . to find that error
unimportant in relation to everything else the jury considered on the issue in question, as
revealed in the record.”’ [Citation.]” (People v. Hudson, supra, 38 Cal.4th at p. 1013,

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quoting People v. Hagen (1998) 19 Cal.4th 652, 671 and People v. Harris (1994) 9
Cal.4th 407, 426.)
“One situation in which instructional error removing an element of the crime from
the jury’s consideration has been deemed harmless is where the defendant concedes or
admits that element. [Citations.]” (People v. Flood (1998) 18 Cal.4th 470, 504.) Among
the “circumstances indicat[ing] that [the] defendant effectively conceded this issue”
(ibid.) are that the “[d]efendant never referred to this element of the crime during the trial
and did not argue to the jury that the prosecution had failed to prove this element beyond
a reasonable doubt . . . . Furthermore, [the] defendant presented no evidence regarding
the . . . element, and failed to dispute the prosecution’s evidence regarding the issue.”
(Id. at p. 505.)
In Hudson itself, the pursuing officers’ car was a Ford Crown Victoria, equipped
with a siren, a red light in the front interior, and a blue-amber blinking light in the rear;
otherwise, the car was unmarked. (People v. Hudson, supra, 38 Cal.4th at pp. 1006,
1009-1010.) The Supreme Court found the error prejudicial “because the jury could have
found that the police vehicle here was not distinctively marked. The model of the car
does not qualify as a distinctive mark because . . . there was no evidence at trial that this
model was used exclusively by the police and not by other motorists. The blue amber
lights might be a distinctive mark, but under the circumstances a jury could have
determined that this feature was not reasonably visible to other drivers.” (Id. at p. 1014.)

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Here, by contrast, the jury could not have found that the pursuing police vehicle
was not distinctively marked. The pursuing officer testified that he was in “a marked
patrol car,” which he described as a “black and white Riverside County Sheriff’s unit.”
Defense counsel effectively admitted or conceded that the car was distinctively marked
by failing to cross-examine the officer or to present additional evidence on this issue, and
failing to refer to it, in closing argument or otherwise, at trial. Hence, we are convinced
beyond a reasonable doubt that the instructional error did not contribute to the verdict.
VII
BLAKELY
Defendant contends that, in imposing an upper-term sentence on the principal
count and consecutive sentences on all other counts, the trial court violated Blakely.
Defendant admits that he is raising this contention mainly to preserve it for federal
review. Our state Supreme Court has held, in People v. Black (2005) 35 Cal.4th 1238,
that trial court fact-finding that results in the imposition of upper-term and/or or
consecutive sentences pursuant to California law does not violate a defendant’s federal
constitutional right to trial by jury as construed in Blakely. As defendant acknowledges,
Black requires us to reject his contention. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)

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VIII
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
GAUT
J.
KING
J.

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Appendix A
30
APPENDIX

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