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The People v. Michael Anthony Barrera

August 2, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL ANTHONY BARRERA, DEFENDANT AND APPELLANT.



(Super. Ct. No. CRF090003129)

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

P. v. Barrera CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Michael Anthony Barrera appeals following his conviction of second degree burglary. (Pen. Code, § 459; undesignated statutory references are to the Penal Code.) Defendant contends the trial court erred in (1) denying his request for a jury instruction on theft as a lesser related offense, and (2) admitting into evidence the section 969b packet of certified records of defendant's prior convictions and prison term in violation of his constitutional right to confrontation and cross-examination. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

An information filed on September 22, 2009, alleged that on July 4, 2009, defendant committed second degree burglary by entering a store with intent to commit theft. The information also alleged one prior strike conviction (§§ 667, subds. (c), (e), 1192.7) and a prior prison term (§ 667.5, subd. (b)) for a 2007 felony assault.

At trial, store clerk Bill Wu testified that, on July 4, 2009, he was working at the Valero Gas Mart when defendant and another man entered the store. Defendant's companion went to the counter and paid the clerk about a dollar for a small item. Defendant walked directly to the refrigerator holding beer, grabbed two 18-packs of beer, turned, and walked out of the store without paying. On his way out, he said something like "Thanks very much" to the clerk. Defendant's companion took a 12-pack of beer and walked out without paying for it. The clerk saw defendant leave in a vehicle but did not see the companion get into the vehicle.

The store's surveillance videotape showed defendant was in the store a total of 20 seconds. Before defendant and his companion entered the store, they spoke to each other outside for about 20 seconds. As they approached the store, the companion made a hand gesture to defendant.

Defendant testified at trial. He admitted he was convicted of a felony in 2007, went to prison, and was released in February 2009. Defendant testified he is an alcoholic and was drinking a lot at the time in question, often to the point of blacking out and not knowing what he was doing. On July 4, 2009, he attended a family barbecue near the Valero Gas Mart. He drank a lot, blacked out, and woke up two days later. He did not remember the events depicted on the videotape.

The trial court denied a defense request for a jury instruction on petty theft (§ 488) as a lesser related offense of the charged burglary.

The jury found defendant guilty of second degree burglary. Defendant then waived his right to a jury trial of the bifurcated priors. Based on defendant's trial testimony and a certified section 969b record of defendant's priors, the trial court found true the prior felony conviction and prior prison term.

The trial court denied defendant's motion for new trial and sentenced defendant to an aggregate term of three years and eight months in prison -- the low term of 16 months, doubled, plus ...


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