Santa Clara County Super. Ct. No. CC935175
The opinion of the court was delivered by: Premo, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Jorge Francisco Juarez was convicted by a jury of one count of first degree burglary (Pen. Code, § 459). He was sentenced to the midterm of four years, with credit of 327 days, consisting of 219 days of custody credit and 108 days of conduct credit. Juarez was further ordered to pay victim restitution in the amount of $6,497.35, along with a restitution fine of $800.
We appointed counsel to represent Juarez in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Juarez of his right to submit written argument in his own behalf within 30 days. That period has elapsed, and we have received no written argument from Juarez.
I. FACTUAL AND PROCEDURAL BACKGROUND
The victim, Barbara Brisson, lived in a street level condominium located in a large complex in San Jose. She always left for work before 7:00 a.m. On September 25, 2008, Brisson went to work as usual, locking her door and closing the blinds.
When she returned home that day between 4:00 and 5:00 p.m., she saw her front door was open and one of her neighbors was walking out of her condo. Brisson went inside to her bedroom and noticed that her bedroom window was broken. The blinds were on the ground, her dresser drawers were on her bed and there was broken glass all over the room. Brisson called the police.
Officer Matias Cervantes responded to Brisson's call and she showed him the broken window, which he inspected and dusted for prints, both inside and outside. The windows had just been cleaned by Brisson's cleaning service on September 19, 2008.
Brisson prepared an inventory of the missing items for her insurance company. According to Brisson, the property stolen from her home included a large collection of quarters, several cameras, an iPod, an iTouch, a Palm Pilot, several watches and other electronic accessories, such as chargers, batteries and storage media, with a total value of approximately $6,500. None of Brisson's property was recovered.
Brisson's next-door neighbor, Huihyngin Kirby, was sitting in front of her window which looked towards Brisson's bedroom. She heard a rattling sound and saw a man shaking the window outside Brisson's room. The window screen was on the ground. Kirby thought the man was 20 to 25 years old, at least six feet tall and about 200 pounds. He was wearing a white short-sleeved shirt and beige knee-length shorts with large pockets.
After rattling the window for a while, Kirby saw the man walk off and she went back to studying. However, she then heard the sound of glass breaking and looked up to see the man holding a big rock. Kirby noticed there was a hole in the window that the man had been rattling earlier. She saw that the blinds in Brisson's house, which had been closed earlier, were now open and the man was inside and the cupboards in Brisson's bedroom were open. Kirby did not call the police, because she thought that the man might be her neighbor's son and she did not think that someone would break into a house during the daytime. That evening around 7:00 p.m., Brisson came over and asked if she had seen anything and that is when Kirby first realized she may have witnessed a burglary.
Kirby subsequently moved to Michigan, and was contacted by a San Jose police officer who discussed showing her a photo lineup via computer. The officer instructed her not to open any of the photos he was emailing to her until he told her to do so. He also said not to open more than one photo at a time, and that if she wanted to compare two pictures, she should close the first one before opening the second. Of the six photos the officer sent to her, she selected a few as being "more familiar" and one that was "most familiar." In court, Kirby was not sure if Juarez looked familiar to her, as the person she saw on the date of the burglary had very short hair. Juarez had the same hair color and skin tone as the person she saw, and appeared to be the same ...