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The People v. Robert Julian Fleischer

December 16, 2010


(Contra Costa County Super. Ct. No. 050902775)

The opinion of the court was delivered by: Reardon, Acting P.J.

P. v. Fleischer



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted appellant Robert Julian Fleischer of two completed and one attempted first degree residential burglary. Sentenced to four years eight months in state prison, he appeals. He contends that (1) his motion to sever one burglary from the others should have been granted and (2) he is entitled to additional presentence conduct credits. (Pen. Code,*fn1 §§ 954, 4019.) We order the matter remanded to the trial court to recalculate Fleischer's presentence conduct credits, but otherwise affirm the judgment.

I. FACTS*fn2

A. The Crimes

1. Carlson Boulevard Attempted Burglary

On February 11, 2009, three nearby*fn3 residences were the target of a burglar. Brendan Garcia was taking a shower at his Carlson Boulevard house in Richmond sometime between 1:00 p.m. and 2:30 p.m. that afternoon when he heard loud knocking at the front door and heard his doorbell sound. When he got out of the shower to check, he heard a noise at the bathroom window. The window was five to six feet above the ground on the side of his house. Through the frosted privacy glass of the window, Garcia saw the blurred image of a person's head. It looked as if the person had something in his hand. He saw the head move and heard scratching sounds at the edge of the window, as if the person was trying to pry off the window screen.

Garcia opened the window and saw a man--later identified as appellant Robert Julian Fleischer. The man had short curly hair; he wore a beige shirt and a medium blue denim jacket lined with white or light-colored fleece. Fleischer immediately fled, running back around the house. By the time that Garcia ran through the house and out the front door, Fleischer was already halfway down Carlson Boulevard, running north along the sidewalk.

Immediately, Garcia called Richmond police. Richmond Police Officer Mark Shanks learned about the attempted Carlson Boulevard burglary at approximately 2:23 p.m., very shortly after Garcia's call. The police had Garcia's description of the suspect--a light-skinned Black or Hispanic male, approximately 30 years old, with black curly hair, wearing a jeans jacket and pants. It was a rainy day and there was only one person on the street--a man who matched the description that Garcia had given. Within three minutes of receiving the report, Officer Shanks saw this man walking northbound on Carlson Boulevard at Santa Clara Street*fn4 two to three blocks from Garcia's home. The man--later identified as Fleischer--was wearing a jean jacket and blue pants. He carried a white canvas bag.

By 2:34 p.m., Officer Shanks had detained Fleischer at Carlson and Santa Clara. The officer instructed Fleischer to put down the bag. He told Fleischer that he was investigating a burglary. Meanwhile, Richmond Police Officer Nicole Abetkov had just arrived at Garcia's home. Having learned that Officer Shanks had detained a suspect, she brought Garcia to see Fleischer.

Garcia identified Fleischer as the person he had seen at his bathroom window. Fleischer was arrested. When searched, his bag was found to contain jewelry, cameras and a credit card bearing Ilona Carpenter's name. Fleischer also had a pocket knife on his person, but no gloves or burglar's tools were found.

2. Lexington Avenue Burglary

Three or four blocks away from Garcia's home, Ilona Carpenter lived at a Lexington Avenue first floor apartment in El Cerrito. At 12:50 p.m. that day, she had locked the windows and doors when she left home. When El Cerrito police learned that Carpenter's property had been found in Fleischer's possession, officers went to her apartment to investigate. They entered the empty apartment through the unlocked front door. Carpenter's front window had been opened. An open jewelry box was found on the bed in the master bedroom. The police took photographs, left a note for Carpenter, secured the window, and locked the front doorknob before leaving.

When she came home about 5:15 p.m., Carpenter found the deadbolt on her door was unlocked and a window shade had been moved. Jewelry, cameras and some credit cards were missing. She called El Cerrito police. When El Cerrito police showed the bag of evidence that had been seized after Fleischer's arrest to Carpenter, she identified the bag and the items in it as hers.

Richmond and El Cerrito police interviewed Fleischer about the Lexington Avenue burglary. Fleischer told police that he had gotten off the bus near the Lexington Avenue address, that he found the bag, and that he knocked at Garcia's door on Carlson Boulevard to see if anyone was home there. When questioned by ...

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