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The People v. Curtis Eugene Swires

August 23, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CURTIS EUGENE SWIRES, DEFENDANT AND APPELLANT.



(Super. Ct. Nos. SF103752A & SF110812B)

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

P. v. Swires

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In April 2007, in case No. SF103752A, defendant Curtis Eugene Swires pleaded guilty to theft by embezzlement. (Pen. Code, § 487, subd. (a).)*fn1 Imposition of sentence was suspended and defendant was placed on probation for five years.

In September 2009, in case No. SF110812B, an amended information accused defendant and co-defendant Manuel Matthew Zavala of attempted willful, deliberate, premeditated murder (§§ 187, subd. (a)/664; count 1), first degree residential robbery (§§ 211, 212.5, subd. (a); count 2), carjacking (§ 215, subd. (a); count 3), elder or dependent adult abuse (§ 368, subd. (b)(1); count 4), first degree burglary (§ 459; count 5), assault with a deadly weapon or by force likely to produce great bodily injury (§ 245, subd. (a)(1); count 6), and conspiracy (§ 182, subd. (a)(1); count 8). Defendant alone was charged with solicitation to commit a felony. (§ 653f, subd. (a); count 7).*fn2

A jury acquitted defendant on counts 1 and 3 and convicted him on counts 2 and 4 through 8. Based on the convictions, the trial court found that defendant had violated his probation in case No. SF103752A.

In case No. SF110812B, defendant was sentenced to state prison for seven years, consisting of the upper term of six years on count 2 plus one year on count 6. The remaining counts were stayed pursuant to section 654. In case No. SF103752A, defendant was sentenced to state prison for a concurrent term of three years.*fn3

On appeal, defendant contends (1) his conviction for residential robbery and resultant probation revocation must be reversed because there was insufficient independent evidence corroborating the statements and testimony of accomplices, and (2) his trial counsel rendered ineffective assistance by failing to object to prosecutorial misconduct during summation. We disagree.

The defendant was convicted as a conspirator or aider and abettor of the perpetrators. Among other evidence of corroboration, the defendant knew the victim well and traveled regularly in the victim's truck. He knew that the vehicle likely contained jewelry. On the day before the robbery, the defendant sent Zavala a text message telling him that "[a]ll good for tomorrow so I could get my buyer set up" and the means of entry of the victim's vehicle without setting off the siren. This amply corroborated Zavala's testimony linking defendant to the crimes.

We shall affirm the judgment.

FACTS

Prosecution Case-in-Chief

Franklin Freni and his wife, Christine Freni, lived in Stockton.*fn4 Franklin, age 75, was a semi-retired contractor who supplemented his income by trading gold jewelry at several local flea markets. In December 2008 and January 2009, Franklin routinely went to the Turlock flea market on Tuesdays and to a different flea market on Saturdays and Sundays. He transported the jewelry in his 2005 Chevrolet truck.

Franklin had known defendant, a fellow flea market vendor, for 12 to 13 years. By February 2008, they had become friends and would vend from adjacent spaces at flea markets. Franklin trusted defendant and gave him a set of keys to Franklin's jewelry case. Defendant regularly drove to Franklin's home at 4:30 a.m. on Tuesdays, and they would drive to Turlock together in Franklin's truck.

On several occasions after February 2008, Franklin noticed that items had disappeared from his truck. At the end of November 2008, Franklin noticed that his pistol, which he had kept under the truck seat, was missing. When Franklin asked defendant about the pistol, defendant answered that he had not seen it and that it must have fallen out of the truck. Unsatisfied with this response, Franklin told defendant that they would not be working together anymore. At around this time, defendant accused Franklin of having burglarized defendant's residence some time before the pistol disappeared.

On Wednesday, December 3, 2008, the Freni residence was burglarized. About 9:30 a.m., the doorbell rang and Christine opened the door. An unfamiliar man said he was looking for "Dwayne Smith." Christine answered that Smith did not live there. The man was driving a car that Christine recognized as belonging to defendant. About a half-hour later, Christine received a telephone call from defendant who asked for Franklin and then asked Christine why she was at home and not at work. Christine found the latter question "weird."

Christine left the house. While on the road, she telephoned Franklin and told him what had happened because "it didn't sit right with [her]." As the Frenis conversed, Christine received an incoming call from their security company advising that a burglary was in progress at their home. She told Franklin about the burglary and then returned home. When she arrived, Christine immediately noticed that the back door was open.

Although Christine was becoming suspicious of defendant, Franklin telephoned him and asked him to come to the house. Defendant did so and stayed at the house while the police were there. A computer and a wristwatch were missing from the house.

At a flea market 10 days later, defendant demanded that Franklin admit that he had burglarized defendant's house. Franklin denied burglarizing the house. In response, defendant told Franklin, "you've got till 11:00 o'clock this morning to give me $7000 or I'm going to rock your world." He explained, "[y]ou'll lose your family. You'll lose your grandchildren." Franklin believed this was "just an empty threat."

Christine became very angry when she learned of Franklin's falling-out with defendant and his threat to her family. On December 16, 2008, she telephoned defendant and told him to stay away from her family and residence.

In early January 2009, defendant purchased gold from Zavala, an acquaintance with a reputation for stealing jewelry from residences. Defendant told Zavala that a man named Frank had stolen jewelry and money from defendant's home, and defendant wanted to get retribution by stealing Frank's stuff.*fn5 Zavala asked defendant how much he was willing to pay him to steal the items back. Defendant said $20,000 and provided Zavala ...


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