People v. Fletcher CA2/6 ( 2021 )

Filed 3/17/21 P. v. Fletcher CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B302780
(Super. Ct. No. 2016012804)
Plaintiff and Respondent, (Ventura County)
v.
CORY LEE FLETCHER,
Defendant and Appellant.
A jury found appellant Cory Lee Fletcher guilty of eight
counts of burglary of a structure (Pen. Code, §§ 459, 460, subd.
(b); counts 1, 4, 7, 8, 9, 10, 11 and 12)1 and four counts of first
degree residential burglary (§§ 459, 460, subd. (a); counts 2, 3, 5
and 6). As to counts 2, 3 and 5, the jury found true the allegation
that a person other than appellant or an accomplice was in the
residence at the time of the burglary (§ 667.5, subd. (c)(21)). The
jury also found appellant guilty of two counts of possession of a
All further statutory references are to the Penal Code
1
unless otherwise stated.
controlled substance (Health & Saf. Code, § 11350, subd. (a);
counts 13 and 14).
The trial court sentenced appellant to an aggregate prison
term of 15 years, 4 months, consisting of: (1) the upper term of 6
years as to count 3; (2) 8 months (one-third the midterm) as to
each of counts 1, 4, 7, 8, 9, 10, 11 and 12; (3) 16 months (one-third
the midterm) as to each of counts 2, 5 and 6; and (4) a concurrent
term of 180 days in county jail for each of counts 13 and 14.
Appellant was ordered to pay fines, fees and restitution.
Only counts 2, 3 and 5 are at issue on appeal. Specifically,
appellant challenges the sufficiency of the evidence as to the
burglary conviction in count 2 and as to two of the findings that a
person was in the residence during the burglary (counts 2 and 3).
Appellant also claims the uncharged conspiracy instruction was
defective because it allowed the jury to convict him of the
burglary in count 5 without requiring it to find that he agreed
and intended to commit that burglary. We affirm.
FACTUAL BACKGROUND
Appellant enlisted two teenagers, Karinna Cortez, with
whom he had an intimate relationship, and Jason Andersen to
help him carry out a string of 12 residential and school
burglaries.
Three of the burglaries occurred at the residence of 88-
year-old Janet Gray (Janet). Another occurred at the residence of
Anthony Trembley (Anthony) and Kathryn Trembley (Kathryn).
A fifth occurred at the apartment of Richard Medina, who lived
across the hall from appellant. The rest occurred at area schools.
We briefly discuss the school burglaries to the extent they relate
to the counts at issue.
2
The Gray Burglaries
In 2016,2 Janet lived alone in a single-family home in
Camarillo. According to her daughter, Lynn Gray (Lynn), Janet
was a sound sleeper who typically went to bed early and woke up
early. Janet removed her hearing aids before going to bed, which
left her “virtually deaf.”
NELOS is a cell phone data system used to triangulate the
approximate location of a cell phone at a particular time. NELOS
data placed appellant’s cell phone within 50 meters of Janet’s
residence at 12:46 a.m. on February 1. The cell phone had been
transported to that location from Oxnard, which is where
appellant lived, and then transported back to Oxnard at 1:30 a.m.
Between 3:00 and 4:00 a.m., Janet’s Chase credit card was
used at a Shell gas station in Oxnard. The Shell surveillance
videotape was inconclusive. It revealed the presence of someone
other than appellant during that time frame, but it is unclear
whether that person paid for any item or used a credit card. The
videotape also did not cover every area in which a customer could
make a purchase.
After getting up that morning, Janet noticed that her
purse, which contained her Chase and Target credit cards, was
missing from a counter in her home. Janet immediately reported
the loss to police. No other items were missing and there was no
sign of forced entry.
At 6:06 p.m. on February 1, appellant’s phone was used to
search “[h]ow to order stuff online with a stole[n] credit card.”
Janet’s Target card was used several days later. The store
videotape showed appellant and Cortez purchasing items at a
2 All referenced dates are to 2016.
3
cash register. The clerk processed the payment and returned
Janet’s card to appellant.
At 8:06 a.m. on February 23, appellant’s phone was used to
search “[h]ow thieves can hack and disable your home alarm
system.” The same phone was used to access the police blotter at
9:54 p.m. At 10:55 p.m., Cortez’s phone was used to search the
Ventura County Sheriff’s patrol events webpage, which lists the
calls for service by patrol officers. At about 11:00 p.m.,
appellant’s and Cortez’s cell phones were triangulated to be at or
near Janet’s residence.
A few hours later, on February 24, Janet called police to
report another burglary. Detective Nora Soler3 and others
responded at approximately 3:00 a.m. After hearing from police,
Lynn drove to Janet’s house. The sliding glass door leading to
the backyard was shattered and a window was broken. Valuable
paintings, sculptures and jewelry were missing. Janet showed
the officers photographs of her extensive paintings collection.
Sergeant Brent Miller found a fragment of a blue rubber glove in
Janet’s front yard. The glove contained appellant’s DNA.
Similar gloves were later found in appellant’s EZ storage unit.
Detective Soler spoke with Janet “[m]ultiple times” during
the burglary investigations. At trial, the detective identified the
bedroom in which Janet was sleeping during the first two
burglaries. Janet had shown her the room, which was near the
front door. Lynn assumed Janet had been sleeping there during
the burglaries “because that’s where she always slept.”
3 Detective Soler is employed by the Ventura County
Sheriff’s Office but was assigned to the Camarillo Police
Department in 2016.
4
Fearing a third burglary, Janet moved in with Lynn. In
the early morning hours of March 9, NELOS data again placed
appellant’s and Cortez’s cell phones at Janet’s home. A side
window and a glass panel near the front door had been shattered,
and the new alarm system had been disengaged and forcibly
removed from the wall. More paintings had been taken. Toward
the end of the burglary, Cortez sent Andersen a text saying
appellant had “fucked up his hands” and was bleeding.
Detective Soler testified that Janet was at home during the
burglaries on February 1 and February 24. She further testified
that sometime between 1:23 a.m. and 4:31 a.m. on March 9,
Janet’s “residence was broken into a third and final time.”
Police subsequently found many of the stolen items in the
EZ storage unit rented by appellant and Cortez. Lynn identified
those items belonging to Janet and they were returned to her.
Janet passed away prior to trial.
The Trembley Burglary
On the evening of March 1, Anthony arrived at his home in
Camarillo and parked in the attached garage. His wife Kathryn
already was home, and her car also was parked in the garage. It
was their practice to leave the side door to the garage unlocked.
Anthony went to bed later that evening and did not leave his
residence until the following morning.
Kathryn, who worked as a teacher at Dos Caminos
Elementary School (Dos Caminos) in Camarillo, had a set of keys
that accessed her classroom, the front office, the computer lab,
the teacher staff lounge and an outside gate. Kathryn usually
left the keys in a school bag inside her car. The car typically
remained unlocked while parked in her garage.
5
At 9:20 p.m. on March 1, appellant’s phone was used to
search “how to disable the alarm system in your home.” At the
same time, there was a series of text messages between Cortez
and appellant regarding whether she could go with him that
night. Appellant agreed but said he was “going to the gym first”
because he was “waiting on some inside information” from “Jay.”
Shortly after midnight on March 2, appellant’s phone was
triangulated to be at or near the Trembley residence. At 1:04
a.m., appellant’s phone was used to access the Pleasant Valley
School District’s website. Dos Caminos is within that district. A
minute later, the phone searched for the Dos Caminos school
layout. The phone did not return to Oxnard until approximately
4:00 a.m.
Later that same morning, Kathryn noticed that the bag
containing the school keys was missing from her car. When she
arrived at Dos Caminos, the police were investigating a burglary.
Two laptops were missing from Kathryn’s classroom. Other parts
of the school had been ransacked. Medications were taken from
the health offices and about 33 iPads and several more laptops
were stolen. Kathryn’s keys had provided access to some of the
burglarized areas. The keys were never recovered.
On March 5, Anthony notified the Ventura County Sheriff’s
Office that several bottles of wine were missing from the garage
refrigerator and that his iPod and sunglasses were missing from
his car. The iPod was found in appellant’s EZ storage unit.
The School Burglaries
The Dos Caminos burglary was the first of seven school
burglaries. Sometime after 3:00 a.m. on March 17, appellant’s
and Cortez’s phones were triangulated to be at the Rio School
District’s Office of Student Family Services in Oxnard. Several
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windows were broken. Desktop and laptop computers were
taken.
From the late evening of March 19 through 2:00 a.m. on
March 20, appellant’s phone was triangulated to be at the CAPE
Charter School in Camarillo. The director’s office window was
broken and keys to the entire campus were removed from the key
box. About 200 iPads, 50 laptop computers and other electronic
equipment were missing.
Between 10:30 and 11:00 p.m. on March 22, NELOS data
placed appellant’s and Cortez’s phones at Pinecrest School in
Thousand Oaks. Someone had tampered with the school doors
and electronic equipment was missing from the classrooms.
On March 22, from 11:35 p.m. through midnight,
appellant’s and Cortez’s phones were triangulated to be at or
near Westlake Montessori School. The security cameras were
disabled and a bathroom window was broken. Computer
equipment and food items were taken.
During the early morning hours of March 29, NELOS data
placed appellant’s and Cortez’s phones at Montalvo Elementary
School. School doors had been removed from their hinges, and
electronic equipment and iPads were missing.
On March 31, deputy sheriffs responded to a call at 2:40
a.m. at Mesa Verde Middle School in Moorpark. Deputies saw
Cortez running down a pathway from the school to the main
road. She was saying, “Babe, babe, where are you?” Cortez told
officers that she came to the school with a friend. A hole had
been cut through a chain-link fence. A large glass door to the
cafeteria had been shattered and other windows had been
broken. Computers and electronic equipment were found in the
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bushes, and 104 laptop computers were haphazardly stacked on a
conference room table.
DISCUSSION
Challenges to the Gray Burglary Convictions
Appellant argues that (1) substantial evidence does not
support the first burglary conviction (count 2) because there is no
evidence of entry into Janet’s residence to steal the purse and (2)
substantial evidence does not support the jury’s finding that
Janet was at home during the first and second burglaries (counts
2 and 3). Both arguments lack merit.
We review the record in the light most favorable to the
judgment to determine whether it discloses substantial evidence.
(People v. Snow (2003) 30 Cal.4th 43, 66.) Substantial evidence is
evidence that is “reasonable, credible and of solid value -- from
which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” (Ibid.) From the evidence, we draw
all inferences supporting the jury’s verdict. (People v. Olguin
(1994) 31 Cal.App.4th 1355, 1382.) Before the judgment can be
set aside for insufficient evidence, “it must clearly appear that on
no hypothesis whatever is there sufficient substantial evidence to
support the verdict of the jury.” (People v. Hicks (1982) 128
Cal.App.3d 423, 429.) “‘“This standard applies whether direct or
circumstantial evidence is involved.”’” (People v. Thompson
(2010) 49 Cal.4th 79, 113.)
Modus operandi is a form of circumstantial evidence
allowing a jury to infer two crimes ““‘were committed by the same
person when the marks common to those offenses set them apart
from other offenses of the same general variety.’”” (People v.
Green (1983) 146 Cal.App.3d 369, 376.) A modus operandi alone
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can be substantial evidence. (People v. Rehmeyer (1993) 19
Cal.App.4th 1758, 1765-1766.)
To prove burglary, the prosecution must show unlawful
entry into a structure with the intent to commit a theft or any
other felony. (§ 459; People v. Anderson (2009) 47 Cal.4th 92,
101.) Here, there is ample evidence that appellant or his
accomplice entered Janet’s residence on February 1 with the
intent to steal. Janet was a heavy sleeper with a severe hearing
impairment. She noticed her purse was missing after she got up
that morning. Appellant’s phone was triangulated to be within
50 meters of her house at 12:46 a.m. A short while later, the
phone was transported to Oxnard, which is where appellant
lived. Janet’s Chase credit card, which had been in her purse,
was used at a Shell station in Oxnard between 3:00 and 4:00 a.m.
The station’s videotape did not show who used the card, but later
that evening, appellant’s phone was used to search “[h]ow to
order stuff online with a stole[n] credit card.”
Several days later, appellant and Cortez used Janet’s
Target card to purchase merchandise. After the transaction was
processed, the clerk returned the card to appellant.
The police initially were unsure whether a burglary had
occurred on February 1. The decisive factor was the phone data.
Detective Soler explained that after Janet reported that someone
was using her Chase credit card, “[w]e established that it was
used at [the] Shell gas station and a Target. . . . Two weeks later
on the 24th when I responded to [that] burglary, . . . I didn’t know
the first one was a burglary. I remembered that report. We still
hadn’t established there was a burglary on [February] 1st until
later on when we analyzed the phone locations.”
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The NELOS data placed appellant’s phone at the first and
third burglaries and his DNA was left on a glove fragment found
after the second burglary. Appellant also was present at all but
one of the school burglaries, which occurred in the middle of the
night and, for the most part, were facilitated by breaking
windows and doors and disabling alarm systems. This same fact
pattern, or modus operandi, kept occurring where unlawful entry
was unmistakable.
Moreover, appellant and/or Cortez entered the Trembley
residence through an unlocked door, and it is possible a similar
point of entry was used to access Janet’s home on February 1.
There is no question Janet tightened security after that date.
Lynn instructed her again on how to set the existing security
alarm and, after the second burglary, they installed a new
security system. But neither of these precautions prevented the
further burglaries.
It was reasonable for the jury, therefore, to find that
appellant committed a burglary on February 1. He was at or
near Janet’s home in the early morning hours, took the purse
from a counter or directed an accomplice to do so, used Janet’s
Chase card at the Shell station in Oxnard, searched the internet
regarding ways to use a stolen card to purchase items online and
then used the stolen Target card several days later. The burglary
also allowed appellant to assess what items may be worth
stealing at a later date.
It also was reasonable for the jury to find that Janet was
present in the residence during the first two burglaries. (See
§ 667.5, subd. (c)(21).) She did not sleep in the master bedroom,
which is where her jewelry was kept. She slept in a bedroom on
the north side of the house by the front door. Nothing was
10
reported stolen from that room. Detective Soler, who
investigated all three burglaries, testified that Janet was
sleeping in that bedroom during the first two burglaries. The
detective was asked: “Had [Janet] been home the first two times
that her house was broken into?” She responded, “Yes.”
The jury was instructed that “the testimony of only one
witness can prove any fact.” (See CALCRIM No. 301; People v.
Barnes (1986) 42 Cal.3d 284, 303-304 [absent inherent
improbability or apparent falsity, the testimony of one witness, if
believed, is sufficient to sustain a conviction].) Not only was
Detective Soler’s testimony compelling, but Lynn also
corroborated much of it. And during closing argument, the
prosecutor reminded the jury it was uncontested that “Janet slept
[at home] every night and she was there on the night of both . . .
burglaries.” We conclude substantial evidence supports the jury’s
finding.
Challenge to the Trembley Burglary Conviction
The jury was instructed with three sets of uncharged
conspiracy instructions patterned after CALCRIM No. 416. Each
instruction pertained to a different set of charges, i.e., (1) the
Gray burglaries, (2) the “burglary of schools” and (3) the Medina
burglary. There was no separate uncharged conspiracy
instruction for the Trembley burglary. It was included as an
“overt act” in the “burglary of schools” instruction.
The “burglary of schools” instruction stated: “To prove that
a defendant was a member of a conspiracy in this case, the People
must prove that: [¶] 1. The defendant intended to agree and did
agree with one or more of Karinna Cortez or Jason Anderson [sic]
to commit burglary of schools in Ventura County, to steal
computers, and to sell the computers for money or drugs; [¶] 2. At
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the time of the agreement, the defendant and one or more of the
other alleged members of the conspiracy intended that one or
more of them would commit burglary of schools in Ventura
County to steal computers and to sell the computers for money or
drugs . . . .”
Appellant claims this instruction was defective because it
allowed the jury to convict him of the Trembley burglary without
requiring it to find that he agreed to and intended to commit that
specific burglary. He argues the instruction deprived him of his
due process right to have the jury adjudicate the intent element
of that crime.
We need not decide this issue because any such error,
assuming it occurred, was harmless. As appellant concedes, “an
erroneous instruction that omits an element of an offense is
subject to harmless error analysis under Chapman v. California
(1967) 386 U.S. 18 [17 L.Ed.2d 705].” [Citations.] “[T]he
Chapman test probes ‘whether it appears “beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.”’” (People v. Gonzalez (2012) 54 Cal.4th 643,
663.)
Thus, “even when jury instructions completely omit an
element of a crime, and therefore deprive the jury of the
opportunity to make a finding on that element, a conviction may
be upheld under Chapman where there is no ‘record . . . evidence
that could rationally lead to a contrary finding’ with respect to
that element.” (People v. Davis (2005) 36 Cal.4th 510, 564
(Davis).) To make this determination, the reviewing court must
“‘conduct a thorough examination of the record. If, at the end of
that examination, the court cannot conclude beyond a reasonable
doubt that the jury verdict would have been the same absent the
12
error -- for example, where the defendant contested the omitted
element and raised evidence sufficient to support a contrary
finding -- it should not find the error harmless.’ [Citation.] On
the other hand, instructional error is harmless ‘where a
reviewing court concludes beyond a reasonable doubt that the
omitted element was uncontested and supported by
overwhelming evidence.’ [Citations.] Our task, then, is to
determine ‘whether the record contains evidence that could
rationally lead to a contrary finding with respect to the omitted
element.’ [Citations.]” (People v. Mil (2012) 53 Cal.4th 400, 417;
see Neder v. United States (1999) 527 U.S. 1, 17 [144 L.Ed.2d 35];
People v. Sandoval (2007) 41 Cal.4th 825, 839 [“[I]f a reviewing
court concludes, beyond a reasonable doubt, that the jury,
applying the beyond-a-reasonable-doubt standard,
unquestionably would have found true” the finding in question,
“the . . . error properly may be found harmless”].)
Here, the prosecutor relied on three alternative theories to
establish appellant’s culpability for the Trembley burglary: (1)
perpetrator liability, (2) aider and abettor liability and (3)
uncharged conspiracy liability. The jury was instructed on all
three theories. It is possible the jury convicted appellant as the
actual perpetrator or as an aider or abettor, but the evidence is
overwhelming and uncontradicted that he conspired with Cortez
to commit the burglary.4
The Trembley burglary occurred between March 1 and
March 2. At 9:20 p.m. on March 1, appellant’s phone was used to
search “[h]ow to disable the alarm system in your home.” At
about the same time, there was a series of text messages between
Cortez and appellant. Cortez asked, “Can I go with you?” She
4 Andersen had yet to join the conspiracy.
13
added, “Please. Please. Please.” Appellant agreed, but said he
was “going to the gym first” because he was “waiting on some
inside information” from “Jay.” Cortez said she was “going to
start getting ready.”
The record confirms that appellant, with Cortez’s
knowledge and assistance, had specifically targeted the Trembley
residence, searched how to disable a residential security alarm
and delayed the burglary pending the anticipated receipt of
“inside information.” Shortly after midnight on March 2, NELOS
data placed appellant’s phone at or near the Trembley residence.
The burglary was limited to the garage, which was entered
through an unlocked side door. Kathryn’s Dos Caminos keys
were taken from her car and an iPod and sunglasses were taken
from Anthony’s car. Appellant apparently was aware of the keys’
significance because at 1:04 a.m., his phone was used to search
the Pleasant Valley School District website. The phone then
searched for the Dos Caminos school layout.
Dos Caminos was burglarized later that morning.
Kathryn’s keys were used to access parts of the school. Her keys
also facilitated access to a “sub-custodian key” which unlocks
every room on campus, including the principal’s office. The
principal’s safe was stolen, and school laptops and other
electronic equipment were taken. Anthony’s iPod and some of
Dos Caminos’s equipment were later recovered from the EZ
storage unit rented by appellant and Cortez.
The record is clear that appellant and Cortez conspired to
commit the Trembley burglary. They texted each other
beforehand and agreed they both would participate. It is evident
that had the jury been instructed on the intent necessary to
support an uncharged conspiracy conviction as to that burglary,
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it would have found such intent. (See CALCRIM No. 416.) There
was no evidence that rationally could have led the jury to find
otherwise. (Davis, supra, 36 Cal.4th at p. 564.) Accordingly, any
error in the instruction was harmless beyond a reasonable doubt.
(Ibid.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P. J.
TANGEMAN, J.
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F. Dino Inumerable, Judge
Superior Court County of Ventura
______________________________
Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and John Yang, Deputy Attorney
General, for Plaintiff and Respondent.
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