APPEAL from a judgment of the Superior Court of Sacramento County, John A. Mendez, Judge. Affirmed. (Super. Ct. No. 06F11232).
The opinion of the court was delivered by: Hull, J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant Dwayne Meredith of first degree burglary (count 1; Pen. Code, § 459), receiving stolen property (count 2; Pen. Code, § 496, subd. (a)), and possession of methamphetamine (count 3; Health & Saf. Code, § 11377, subd. (a)). In a bifurcated proceeding, defendant admitted two prior prison terms (Pen. Code, § 667.5, subd. (b)) and one prior strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) which also qualified as a five-year enhancement (Pen. Code, § 667, subd. (a)). The trial court sentenced defendant to an aggregate state prison term of 15 years (the four-year midterm on count 1, doubled for the prior strike, two consecutive one-year terms for the prior prison terms, and a five-year consecutive enhancement under Penal Code section 667, subdivision (a)).
Defendant contends (1) compelling him to appear in jail clothing throughout the trial violated due process; furthermore, it prejudiced him as to count 1 because insufficient evidence supported his conviction for burglary; and (2) the trial court erred prejudicially by refusing defendant‟s request to modify CALCRIM No. 1701 (Judicial Council of Cal. Crim. Jury Instns. (2007-2008), CALCRIM No. 1701). We affirm the judgment.
By the year 2006, Melvin Olsen, aged 93, had lived in a house on T Street in Sacramento for 70 years. He owned and occupied it alone.
In September of that year (all of the events we set forth in this opinion occurred in 2006 unless otherwise stated), Olsen entered a hospital, suffering from dementia and age-related physical problems. In October, he was transferred to a skilled nursing facility.
Before going into the hospital, Olsen asked Wayne W., his accountant and longtime friend, to take care of the house.
Olsen did not ask or authorize Wayne W. to sell the house or to remove any personal belongings. According to his son, Olsen was "adamant that all of his things stayed just the way they are" because "he was planning on coming back." To Wayne W.‟s knowledge, Olsen kept stock documents, cashier‟s checks, traveler‟s checks, and as much as $13,000 in cash in the house.
In keeping with Olsen‟s wishes, Wayne W. paid the utility bills and property taxes, hired a landscaper to maintain the yard, checked on the house periodically, picked up the mail, took trash cans out to the street, and went in occasionally to spray the air. Whenever he left the house, he locked the doors and secured the windows.
While it is somewhat unclear from the record, on December 26, Olsen may have been taken off life support.
On the morning of December 27, Wayne W. drove to Olsen‟s house for the first time in a week; he had probably not been inside for two weeks. He pulled into the driveway, checked the mail, and walked back to his truck. At that point he saw two strangers, a black man and a white man, coming out of the garage. (He identified defendant in court as the black man.) When he asked them their names, they walked away in opposite directions; the white man crossed the front yard and walked down the street, while the black man went around the back. Wayne W. followed the white man, who turned around, got into a nearby parked car (the license plate number of which Wayne W. recorded), and sped off.
Wayne W. called 911, but because the police did not arrive quickly, he drove off looking for the black suspect. He spotted the man jumping a fence while talking on a cell phone, then lost sight of him. Encountering a UC Davis police officer, Wayne W. told him the story. Ultimately, the UC Davis police detained a car and two suspects, including defendant, whom Wayne W. identified.
Accompanying law enforcement into Olsen‟s house, Wayne W. found the bolts pulled out of the garage door and property strewn all over the inside of the house. When Olsen‟s son went in, he saw that all the drawers had been dumped out and the locked closets had been broken into. He made a list of missing valuables, including a mink stole, a man‟s Seiko watch, a string of pearls, silver bars, coins, $15,000 in cash, and firearms.
A criminalist checked the scene for latent prints, but found none. Neighbors reported that they had not seen or heard anything unusual on the morning of the crime.
When defendant was searched after his detention, he was found not to have any items on him from the list of Olsen‟s son. In addition to methamphetamine, however, the officers found a $100 traveler‟s check bearing Melvin Olsen‟s signature in defendant‟s wallet. According to Wayne W., Olsen had acquired traveler‟s checks for a trip, but kept the unused ones at home. Olsen‟s son testified that his father would never have thrown them away. The authorities also found a pen in defendant‟s jacket labeled "Mel Dor Enterprises," a name which combined the first syllables of Olsen‟s and his late wife‟s first names; he had kept pens such as those in the house.
On December 31, suffering from pneumonia and having taken an "[u]nexpected turn for the worse," Olsen died without ever having returned home.
Defendant did not put on evidence.
In argument, trial counsel conceded defendant‟s guilt on count 2 (receiving stolen property) and count 3 (possessing methamphetamine) but disputed count 1 (first degree burglary) on factual and legal grounds. Counsel asserted that the evidence on this count was insufficient: defendant did not possess any stolen property other than that going to count 2; his fingerprints were not found at the scene; and, noting that the neighbors did not notice anything unusual on December 27, argued that others must have invaded the house before that date because so much property was missing. Counsel also asserted that even if defendant entered ...