Opinion
D070094
09-05-2017
THE PEOPLE, Plaintiff and Respondent, v. SAMI HANNA ANTAR, Defendant and Appellant.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS268104) APPEAL from a judgment of the Superior Court of San Diego County, Michael D. Wellington, Judge. Affirmed in part; reversed in part and remanded with directions. Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
This case involves a conspiracy on the part of defendant Sami Hanna Antar and codefendant Miguel Venegas—its ringleader—also working together with and through members Ricardo Duron, Ronnie Lee Fults II, Jose Montes, and/or Paulina Aguirre—to commit a series of residential burglaries in San Diego County between about August 2012 and July 2013 (the conspiracy). Antar did not enter any of the myriad of homes burglarized during the conspiracy; rather, it was alleged he acted as the "fence" or as a depository of the "loot" stolen in the burglaries.
Venegas is not a party to this appeal, but instead filed his own appeal, case No. D069813.
Antar and Venegas were jointly charged by amended information with 46 counts of first degree burglary (Pen. Code, §§ 459 & 460; counts 1-13, 15-21, and 23-48); two counts of attempted first degree burglary (§§ 664, 459 & 460; counts 14 & 22); and one count of conspiracy to commit residential burglary (§§ 182, subd. (a)(1), 459 & 460; count 49). Antar alone was charged with one count of receiving stolen property (§ 496, subd. (a); count 50). With respect to the conspiracy count, the amended information further alleged 157 overt acts.
All further statutory references are to the Penal Code unless noted otherwise.
On motion by the defense, the court pursuant to section 1118.1 dismissed counts 10, 21, and 36, and the corresponding overt acts pertaining to such counts. The jury found Antar not guilty of count 25, but returned guilty verdicts on all remaining charges. The court sentenced Antar to prison for the term of 22 years eight months.
Antar contends his convictions on all counts other than count 50 must be reversed because there is insufficient evidence in the record to show he either conspired or aided and abetted to commit the crime of residential burglary or attempted residential burglary. He further contends there is ambiguity concerning whether victim restitution ordered by the court under section 1202.4, subdivision (f) is joint and several as to all or only some of the members of the conspiracy and as to the total amount of that award, as adjusted by the trial court at his sentencing. Finally, he contends various assessments and a fine were improperly imposed.
As to victim restitution, we agree the court's order is ambiguous both as to who among the members of the conspiracy is liable to pay restitution and as to its amount. As such, remand of this issue, and only this issue, is warranted. We also agree the court improperly imposed various assessments and a fine on Antar, as discussed post. In all other respects, Antar's judgment of conviction is affirmed.
OVERVIEW
A. The Conspiracy
At all times relevant, Antar operated a business known as "Antar's Jeweler" and as "King of Bling" in a suite in the Jewelers Exchange building located on Sixth Avenue in downtown San Diego. The public could access the suite only by contacting Antar to make an appointment, as confirmed by the plaque on the suite door which read, "By appointment only, call [phone number], Sami Antar." The only display cases in the suite belonged to another business. With the exception of about 20 items, all the other jewelry inside his suite was just "lying there" or "lying in boxed areas inside [two] safes with nothing stating value, price, where it came from, where it's going to—nothing like that." Jewelry found inside the suite included chains; watches; bracelets; rings; earrings; and pendants, many of which were gold or silver, or were decorated with stones and gems. Antar also did not have any ledgers or similar-type records indicating the source of the jewelry.
The amended information alleged between August 2012 and July 2013, defendant Venegas, joined at various times by Duron, Fults, Montes and/or Aguirre, conspired to commit, and/or committed, along with Antar residential burglaries in San Diego County. All of the burglaries took place during daylight hours and on weekdays. The majority of the burglaries took place in residences located in the Chula Vista area.
As summarized post on a count-by-count basis, typically Venegas and other members of the conspiracy set out mid- to late-morning and drove neighborhoods searching for "soft" targets to burglarize. Once a potential target was identified, Aguirre—until her arrest in late November 2012—went to a home's front door, while the others waited in the car, in an effort to determine if the home was occupied. If the home appeared unoccupied, Venegas along with Duron and/or Fults entered from the side or back of the home, out of view from the street. In many of the burglaries, they used an object from the home's backyard, such as a brick or a rock, to smash a window and/or a sliding glass door to gain entry into the home.
In nearly all of the incidents residents came home to find their homes ransacked, particularly their bedrooms, and their jewelry, electronics, and other items including firearms, knives, jewelry boxes, coins, and "piggy banks," missing. In many of the burglaries, knives were left in the bedroom area or in other areas of the home that had been searched and ransacked during the break-in. In addition, many residents also found pillowcases had been taken from their bedroom pillows, which ostensibly were used to carry the loot out of the home.
In late August 2012, police stopped Montes in his baby blue 1959 Volkswagen Beetle. His car was impounded because he was driving on a suspended license. A search of the car revealed items that had been stolen from homes burglarized during the conspiracy. However, Montes was not arrested for his participation in the burglaries until April 2013.
Aguirre also participated in myriad burglaries until her arrest on November 28, 2012. Like Montes, Aguirre also cooperated with law enforcement, which helped lead to the arrests of Antar and Venegas. As discussed post, both Aguirre and Montes testified that after almost every burglary they participated in during the conspiracy, Venegas alone would contact Antar by cell phone in their presence; together they would drive downtown to Antar's "store" located in the Jewelers Exchange building; Venegas alone would go inside the building with the loot while everyone else waited in the car, sometimes for up to an hour; and Venegas then would return with money and without the loot.
On June 6, 2013, police searched Fults's residence located in Spring Valley and found a large amount of property inside pillowcases and handbags. Most of the jewelry found in the June 6 search was costume jewelry. Also found during the search were "jewelry boxes, safes, [a] gun [and] gun equipment." Fults was arrested that same day. Items recovered from Fults's residence were later displayed by law enforcement at a property viewing held in summer 2013.
Venegas was arrested on October 30, 2013, for his participation in the burglary conspiracy. Inside Venegas's wallet, law enforcement found a "couple of pawn tickets" in Fults's name from a chain of pawn shops, one of which was located in Chula Vista. Law enforcement subsequently went to that shop and identified a "thick gold chain" and a gold cross with diamonds that Fults had pawned.
On December 3, 2013, law enforcement obtained a warrant and searched Antar's suite. As noted, most of the jewelry was just lying about inside his suite, including in boxes inside two "safes with nothing stating value, price, where it came from, where it's going—nothing like that." Because no ledgers were found and because most, if not nearly, all of the jewelry had no identifying features (i.e., a tag), law enforcement struggled to determine "who own[ed] what." From this search, law enforcement seized "about 600 pieces of jewelry, 18 knives, one Versace purse, 14 .9mm bullets, one .40 caliber bullet, two silver teapots, one sword, one set of brass knuckles, one brass dish, five folders with collector coins [and] various [other] coins . . . ." Law enforcement also searched Antar's computer, which, as discussed post, contained myriad pictures of items stolen from homes during the conspiracy. A property viewing of items recovered from the December 3 search of Antar's business was held in early January 2014, which, as discussed post, led to the return of some of the items stolen during the conspiracy.
B. Cell Phone Evidence
District attorney investigator Don Holmes testified as an expert regarding cell phones including how they operate, cell-site mapping, and record keeping. Investigator Holmes testified that, while the cell phone technology continues to improve as the "science" is "upgraded," ultimately a cell phone is still a "radio," as it "communicates to a cell tower via a radio signal and receives a radio signal back from the cell tower."
Investigator Holmes testified that when a cell phone call is placed, that call may not access the nearest tower; that instead, cell phone providers utilize the "best-server concept"; that a cell phone continually accesses the quality of a signal from surrounding towers; and that, while a phone may recognize more than one tower, it ultimately will connect to the "dominant tower that has the best signal," even if that tower is not the closest to the phone.
Investigator Holmes further testified that various factors went into the determination of the best-server tower including whether an obstruction interferes with the radio signal. In San Diego County, investigator Holmes testified that most of the cell towers in "urban areas" are about one to three miles from each other; that in the downtown area, that distance can be "much less"; that in the "rural portions" of the county, the towers "can be up to eight or ten miles" apart; and that ultimately, it just depends on where a call is made.
Investigator Holmes discussed the use of call detail records from the various cell phone providers to obtain the address and/or GPS coordinates of one or more towers that were used by a network to connect a call. Investigator Holmes testified that he analyzed cell phone records in the instant case; that he prepared "maps" based on this analysis; that his analysis led to the creation of a 2,284-page document; and that he created various "slides," which broke his analysis into 48 "incidents" to "evaluate cell site activity" for each of the six phones connected to the conspiracy. As summarized post, Investigator Holmes used the slides to show the timing of communications between, and movement of, the various cell phones affiliated with members of the conspiracy with respect to each count.
DISCUSSION
I
Sufficiency of the Evidence (Counts 1-9, 11-20, 22-24, 26-35, and 37-49)
A. Guiding Principles
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that 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. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' (People v. Lindberg (2008) 45 Cal.4th 1, 27.)" (People v. Covarrubias (2016) 1 Cal.5th 838, 890 (Covarrubias).)
As noted ante, although Antar never entered any of the homes burglarized during the conspiracy, he nonetheless was charged with 46 counts of committing first degree residential burglary, two counts of attempted first degree burglary, conspiracy to commit burglary, and one count of receiving stolen property. Antar was tried on two theories: conspiracy (i.e., CALCRIM Nos. 415 [conspiracy]; 417 [liability for coconspirators' acts]; 418 [coconspirators' statements]; and 419 [acts committed or statements made before joining conspiracy]) and aiding and abetting (i.e., CALCRIM Nos. 400 [general principles]; 401 [intended crimes]; and 1702 [burglary/intent of aider and abettor]). (See People v. Kefry (1958) 166 Cal.App.2d 179, 188 [noting a defendant who did not actually commit burglary may nonetheless be convicted of burglary "either on the liability of a conspirator or on the evidence of possession of stolen property plus slight corroborating evidence" which may include " 'evidence of acts, conduct, or declarations of the accused tending to show his [or her] guilt' "].)
Because, as discussed post, we conclude there is substantial evidence in the record to support Antar's myriad burglary convictions under a conspiracy theory of vicarious liability, we deem it unnecessary also to decide whether he is guilty under the related aiding and abetting theory. (See § 31 [providing "[a]ll persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, . . . are principals in any crime so committed"]; see also People v. Morante (1999) 20 Cal.4th 403, 433 (Morante) [noting the "doctrine . . . that one may be liable as an aider and abettor 'when he or she aids the perpetrator of an offense, knowing of the perpetrator's unlawful purpose and intending, by his or her act of aid, to commit, encourage, or facilitate commission of the offense, "snares all who intentionally contribute to the accomplishment of a crime in the net of criminal liability defined by the crime, even though the actor does not personally engage in all of the elements of the crime" ' "], citation omitted.)
Entering a "house" with the intent to commit a theft or a felony is burglary. (§ 459.) "Attempted burglary requires two elements: (1) the specific intent to commit burglary and (2) a direct but ineffectual act toward its commission. [Citation.]" (People v. Mejia (2012) 211 Cal.App.4th 586, 605 (Mejia).) " ' "[I]ntent must usually be inferred from all of the facts and circumstances . . . ." ' " (People v. Cain (1995) 10 Cal.4th 1, 47.) It "may be proved by circumstantial evidence." (People v. Moore (1965) 234 Cal.App.2d 29, 31.) "Entry of an inhabited dwelling house with the requisite intent is burglary of the first degree. (§ 460, subd. (a).)" (Mejia, at p. 605.)
Section 182 prohibits a conspiracy by two or more people to "commit any crime." (Id., subd. (a)(1).) " 'A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act "by one or more of the parties to such agreement" in furtherance of the conspiracy.' [Citations.]" (People v. Johnson (2013) 57 Cal.4th 250, 257.) "The prosecution need not prove that each conspirator knew the identity of all the other members of the conspiracy, or their exact functions. (Blumenthal v. United States (1947) 332 U.S. 539, 557 . . . ; People v. Van Eyk (1961) 56 Cal.2d 471, 479.) If the defendant conspired with only one person instead of many, as charged, he [or she] is still guilty of conspiracy. (People v. Collins (1966) 242 Cal.App.2d 626, 633-634.)" (People v. Vega-Robles (2017) 9 Cal.App.5th 382, 420.)
Conspirators are vicariously liable for the unintended acts of coconspirators if such acts are in furtherance of the conspiracy. Coconspirators are liable for any reasonably foreseeable offenses committed by the perpetrator. (People v. Hardy (1992) 2 Cal.4th 86, 188.) Proof of a conspiracy serves to impose criminal liability on all conspirators for the crimes committed in furtherance of the conspiracy. Where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his or her confederates committed in furtherance of the common design for which they combine. (People v. Superior Court (1997) 58 Cal.App.4th 833, 842-843.) "Evidence is sufficient to prove a conspiracy . . . 'if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.]' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135 (Rodrigues).)
Because conspiracy criminalizes the agreement to commit a crime, it " 'does not require the commission of the substantive offense that is the object of the conspiracy.' " (Morante, supra, 20 Cal.4th at pp. 416-417.) In addition, the absence of evidence of Antar actually entering any of the homes burglarized during the conspiracy is of no consequence because " '[i]t is not necessary that a party to a conspiracy shall be present and personally participate with his [or her] co-conspirators in all or any of the overt acts' " (id. at p. 417); instead, " ' " '[e]ach [conspirator] is responsible for everything done by his [or her] confederates, which follows incidentally in the execution of the common design . . . .' " ' [Citations.]" (See ibid.)
B. Analysis
Antar does not dispute that Venegas, Duron, Fults, Montes and/or Aguirre conspired with each other to commit—or attempted to commit—first degree residential burglaries or that they committed each of such burglaries and/or attempted burglaries for which Antar also was convicted. Nor does Antar contend there was insufficient evidence of the commission of one or more overt acts in furtherance of the conspiracy. Instead, he contends the evidence is insufficient to show that he was a member of the conspiracy in committing, or attempting to commit, the first degree residential burglaries. We disagree, as the record shows there is more than sufficient evidence, including the inferences to be drawn from such evidence, to support Antar's convictions under this theory of liability.
Count 1:
Victim C.C. testified that on August 15, 2012, at about 2:15 p.m., she was notified that an alarm had been activated at her home located on Sundrop Court in Chula Vista. On inspection, C.C. found that a rock had been thrown through a window located on the side of the house; that someone had entered the home, ransacked it, and taken various items including jewelry; and that a pillowcase was missing from a bedroom pillow.
On the day of this break-in, a neighbor heard the C.C.'s home alarm sound and saw two men sitting in what the neighbor described as a light blue, 1960's Volkswagen Beetle parked across the street from the C.C. residence. Shortly thereafter, the neighbor saw a third man come from the direction of the C.C. residence holding a "bag of some sort," quickly get into the Beetle, and watched as the car sped off.
Montes testified that the C.C. home was the first one burglarized by him, Venegas, and Duron during the conspiracy; that, after they determined nobody was home, while he and Duron kept watch he saw Venegas jump a fence, then about a minute later, he heard glass breaking and an alarm sounding. About two minutes later, he saw Venegas exit the front door carrying a pillowcase full of jewelry.
Investigator Holmes testified that the cell phone records for this day showed a 15-second call from Antar's phone to Venegas's phone at 12:27 p.m.; that at around 2:09 p.m., there were two calls involving Venegas's cell phone that pinged off a cell tower near the C.C. home; and that later in the afternoon, phone records showed multiple calls involving the phones of Montes, Venegas, and Aguirre that accessed one or more cell towers "east of the [C.C.] house."
At 5:03 p.m. that same day, phone records showed an outgoing call from Venegas's phone to Antar's phone "pinging off of a tower near downtown" San Diego, where, according to Aguirre (see counts 3, 4, and 5, post) and Montes (see count 2, post), Antar's "store" was located and where Venegas, after almost every burglary, would meet Antar and exchange the loot for money. Phone records also showed call activity between the phones of Venegas and Antar at 5:13 and 5:19 p.m.
On this record, we conclude substantial evidence—as further summarized ante—supports Antar's conviction on count 1 under a conspiracy theory of vicarious liability. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 2:
Victim G.T. testified that her home located on Diamond Drive in Chula Vista was broken into on August 21, 2012; that she left home at about 1:00 p.m. and returned at about 5:00 or 6:00 p.m.; and that when she arrived home, she found clothes from her bedroom drawers scattered on the floor and her jewelry box, which had been full and which included coins she had collected, empty. Also missing was $4,500 in cash G.T. intended to use to pay for new carpeting. As was the case in the C.C. break-in, G.T. found one of her pillowcases missing from a bedroom pillow. Also missing from G.T.'s home was a spare key to a Mercedes that she kept hidden in a drawer in the hall closet. In her daughter's room, G.T. found a screen from a window had been removed; her daughter's clothes also scattered on the floor; and her daughter's laptop and jewelry missing.
About a month after the break-in, G.T. one day returned home and found the sliding door and screen to her home open, as was the door leading from the garage to the house. G.T. testified that nothing was missing from the house as a result of this second entry; that she had been driving her Mercedes during both entries; and that in January 2013, she went to sheriff's station and identified a pair of earrings and a watch that had been taken during the initial break-in.
Montes testified that he recalled Aguirre was with him, Venegas, and Duron on this day; that it was Aguirre who knocked on the front door of the G.T. home; that he parked up the street from the home while he and Aguirre watched Venegas and Duron enter a side gate by the house; and that he specifically recalled they stole a laptop, multiple pursues, and jewelry from this home. After this burglary, they drove to Venegas's mother's home, where Venegas also lived, to sort through the items. Montes recalled Venegas on this day stated that "Sami" (i.e., Antar) was interested in buying "MacBook" computers.
When asked how they would get money from the stolen items, Montes testified that during the "week and a half" he was participating in the burglaries, about four or five times he drove Venegas and Duron, and sometimes Aguirre, to a jewelry store in downtown San Diego to meet "Sami," where Venegas alone entered the store with the stolen items and returned with cash. Montes further testified that Antar's jewelry store was located inside a brownstone building Montes identified as the "Jewelry [sic] Exchange."
Montes testified that, before they "load[ed] up the car with the stolen goods" and drove them downtown to Antar's store, Venegas called or text-messaged Antar to "alert" him they were on the way. Montes further testified Venegas sometimes would spend an hour or more with Antar inside the brownstone building. Because Venegas would be gone so long, Montes stated they sometimes would become "impatient" and would text-message and/or call Venegas "asking him what [was] taking so long." Montes specifically recalled driving to the Jewelers Exchange on August 21—the same day as the break-in of the G.T. residence—with a stolen MacBook.
Investigator Holmes testified the phone records for this day showed calls at 12:07 and 12:09 p.m. between Venegas's phone and one of Aguirre's phones. The records also showed myriad phone calls and/or text messages beginning at about 2:58 p.m. involving phones affiliated with Montes, Aguirre, and Venegas in the general area of the G.T. residence. At 4:28 and again at 4:57 p.m., the records showed incoming calls from Antar's phone to Venegas's phone; and beginning at about 5:25 until at least 6:17 p.m., the records showed activity for the phones of Montes, Aguirre, and Venegas in the downtown area, near Antar's store, where Venegas would meet Antar and exchange the loot for money while the other members of the conspiracy waited in the car. Finally, at about 7:33 p.m., the records showed an outgoing call from Venegas's phone to Antar's phone.
On this record, we conclude substantial evidence supports Antar's conviction on count 2 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Counts 3, 4, and 5:
These counts all took place on August 27, 2012. A.P. testified in connection with count 3 that he resided in a home located on Galdar Place in Chula Vista. At about 1:00 p.m. that day, A.P. received a phone call from his alarm company notifying him the backdoor and a window at his home had been compromised. A.P. testified the home had surveillance cameras that allowed him to view the inside, but no equipment to record what he saw. According to A.P., the only things taken from the home were "two sport jerseys" he kept in the closet.
On the day of this break-in, neighbor J.S. saw a light blue "old Volkswagen" pull up on the wrong side of the street and park in front of A.P.'s home. J.S. saw a female exit the vehicle and they made eye contact. J.S. surmised the female was a cleaning lady and was entering the home to clean. However, about 30 minutes later, J.S. noticed the "old Volkswagen" was gone. J.S. later identified the female from a photographic lineup, who police determined was Aguirre.
Montes recalled the burglary of the A.P. home. Montes "believe[d]" that they also may have stolen a car from the garage of this home.
S.T. testified that, in connection with count 4, she lived on Annadale Way in Chula Vista; that at about 3:00 p.m. that day, she returned home and found the door to the garage refrigerator open and "some stuff" on the floor; that the screen to the kitchen window had been removed; and that when she walked into her bedroom, she saw it had been ransacked and there were two large kitchen knives lying on her bed. S.T. immediately went outside and called 911. Once outside, S.T. saw her neighbor, who lived across the street, also "frantic[]" and on the phone.
Count 4 of the amended information incorrectly spelled the victim's name.
S.T. testified that on inspection, she found several items missing from her home including multiple pieces of jewelry; a laptop computer; cell phones; a camera; foreign currency; and headsets. A few weeks after the break-in, S.T. went to a sheriff's station and identified some foreign coins and jewelry that had been taken during the break-in. About a year later, S.T. again went to a sheriff's station and was able to identify additional items taken in the break-in.
Neighbor A.G. testified that, when she went to pick up her mail on this day, she saw an older light blue Volkswagen parked nearby. A male was sitting in the driver's seat and a female with long hair was sitting in the backseat. A.G. subsequently identified the female in a photographic lineup, who police determined was Aguirre.
Forensic evidence technician Michelle Hefty testified that she was part of a team of law enforcement that responded to the S.T.'s residence on the day of the break-in; that she was able to lift several prints from the sliding glass door in the living room; that the prints were lifted both from the interior and exterior of the door; and that the prints were then impounded. Mary Kay Hunt, a latent print examiner with the Chula Vista Police Department, determined two latent prints taken from the door matched the right thumb of Aguirre.
Montes recalled burglarizing the S.T. home. Montes further recalled Aguirre entered the S.T. residence along with Venegas and Duron.
Aguirre, age 22 at the time of trial, testified that she was charged with 24 counts of residential burglary, and ultimately pleaded guilty to eight counts of aiding and abetting residential burglary; that she was involved in these burglaries between about July and late-November 2012; that her youngest child was fathered by Venegas; and that she agreed to cooperate with law enforcement because she was young, had kids, and felt it was the "right thing to do."
Aguirre estimated that during the July/November time period, at least four or five days "every week" she participated in residential burglaries. Aguirre stated that she became involved in the burglaries because she wanted to "hang out" and "be with" Venegas; and that she met Duron through Venegas.
With respect to count 4, Aguirre said she had been waiting in Montes's car with Montes while Venegas and Duron went into the home. A few minutes later, Venegas called Aguirre and asked her to join them because they wanted her to "squeeze in through a [crack] in the sliding glass door." When Aguirre was unable to do so, Venegas went in through the kitchen window and then opened the door for Aguirre. Once inside, Aguirre saw Venegas looking through drawers for jewelry while Duron went to the closet. Aguirre, who was the only one not wearing gloves, helped Venegas put items in a backpack, and they left. Although Aguirre returned to Montes's car, Venegas and Duron went across the street and burglarized the neighbor's home (i.e., count 5).
T.M. testified in connection with count 5 that she and her family also resided on Annadale Way; that she left the house that morning at about 10:00 a.m. and returned at about 3:00 p.m.; that when she arrived home, she found the front door open and all of their "things . . . thrown across the floor—pictures, papers, items"; that a window in the dining room had been opened and its screen removed; and that a sliding glass door in the living room area also had been opened.
Upstairs, T.M. found her bedroom had been "ripped apart." Like many other victims, T.M. found pillowcases missing from pillows and kitchen knives in her bedroom. Specifically, T.M. testified that there were about seven "steak" knives lying on her bed; that the bedroom mattresses were flipped over; that her bedroom closet was ripped apart; that the drawers in two bedrooms were emptied; that a fire safe was opened and its contents, including jewelry and coins, were taken; and that items were also taken from the garage including expensive military gear used by her husband.
A few weeks after the break-in, detectives contacted T.M. about property they found in Montes's Beetle after it was impounded. On inspection, T.M. identified two coin sets belonging to her children and a watch belonging to her husband. T.M. later learned some coins stolen during the break-in were at a pawnshop. T.M. found the coins and purchased them because of their sentimental value.
Aguirre recalled the burglary of the T.M. home. She testified that Venegas and Duron returned with a "military backpack" and that Venegas talked about stealing "military gadgets" such as "night-vision goggles" from the home. Immediately after this burglary, Aguirre stated they all went "downtown" to the "Jewelers Exchange" so that Venegas could meet "Sam" (i.e., Antar).
Like Montes, Aguirre testified that Antar and Venegas had a "personal relationship;" that while they were all in the car, Venegas alone would use his cell phone to contact "Sam"; that when "Sam" responded, they would head downtown after "[a]lmost every single [burglary]" with the loot (italics added); and that only Venegas would take the loot inside and meet with "Sam" while everyone else remained in the car. Aguirre estimated Venegas spent about 30 to 40 minutes, and sometimes an hour, inside with Antar, and then returned with money.
Aguirre testified that typically after a burglary, the items stolen would be sorted by Venegas either in the car or at his home, where he lived with his mother; and that she never burglarized a home alone, but rather Venegas and Duron were always present during the burglaries.
Investigator Holmes testified that on this day, phone records showed there was an incoming call from Antar's phone to Venegas's phone at 9:50 a.m. and that at 11:07 a.m., there was an outgoing call by one of Aguirre's phones that accessed a tower "directly south" of the A.P. residence.
Phone records further showed an outgoing call from Venegas's phone to Montes's phone at 12:34 p.m.; an outgoing call involving Aguirre's phone that accessed towers "somewhat close" to the S.T. and T.M. residences; and an incoming call from Aguirre's phone to Venegas's phone at about 1:17 p.m. At 3:08 p.m., there was a call lasting 30 seconds from Venegas's phone to Antar's phone. That call accessed a tower at the intersection of the 805 and 54 freeways. At 4:44 p.m. there was an incoming call from Antar's phone to Venegas's phone; and at 5:29 p.m. there was an outgoing call from Venegas's phone to Antar's phone lasting 30 seconds, "followed by an incoming call from the Antar phone to the Venegas phone [also] at 5:29 p.m." lasting one minute 35 seconds.
On this record, we conclude substantial evidence supports Antar's conviction on counts 2, 3, and 4 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Counts 6 and 7:
Counts 6 and 7 both took place on August 28, 2012. T.Mo. testified in connection with count 6 that he resided on Rue Michelle in Chula Vista; that he left for work at about 8:00 a.m. that morning and when he returned at about 3:00 p.m., he found his garage door open and his Mercedes Benz missing; that when he entered the residence, he found each room had been "ransacked"; that all of his wife's jewelry and his watches were missing from their bedroom; and that also missing from the home were cameras and a laptop computer, among many other items.
About a week after the break-in, police found T.Mo.'s car in San Ysidro, near the United States and Mexico border. About two months later, T.Mo. was asked to attend a property viewing of items recovered by detectives. T.Mo. testified he identified his wife's ring, which had been taken during the break-in.
Montes testified he recalled the T.Mo. home and recalled they stole a mid-sized Mercedes SUV from the garage. Although he could not recall if Aguirre was with them on this occasion, he did recall being with Duron and Venegas when this home was burglarized.
B.B. testified in connection with count 7 that he resided on Westview Drive in Chula Vista; that at about 4:45 p.m. that day, he was notified by his home alarm company that the alarm had been activated; and that when he returned home, he went around to the back of his house and found a window had been broken and the sliding glass door opened. Once police arrived and secured the home, B.B. went inside and found the upstairs bedrooms had been "ransacked," like many of the other homes burglarized during the conspiracy. Also like other victims, B.B. found a pillowcase missing from a bedroom pillow.
Items taken from the B.B. residence included a rosary; watches; a laptop computer; and an urn containing the ashes of a family pet. About a month later, B.B. was contacted and shown photographs of various items recovered by law enforcement. B.B. was able to identify a dive watch that had been taken during the break-in.
Montes could not recall burglarizing this home. However, neighbor R.H. testified he lived near the B.B. home and, on the day of the break-in, he saw a light blue VW Beetle parked in front of the house, which he found "highly unusual." Inside the car R.H. saw three Hispanic-looking males. R.H.'s wife took down the license plate of the Beetle, which was provided to law enforcement.
A day or two after the B.B. burglary, Chula Vista police pulled over Montes while he was driving in his Beetle. Police impounded the car because Montes was driving on a suspended license. A search of the car revealed several watches (only one of which belonged to Montes); a Mercedes Benz car key; foreign coins; a laptop; and jewelry found under and behind the seat. Police also found a store receipt showing Montes had sold some coins.
Montes was arrested on April 11, 2013, and charged with six burglaries. Initially, Montes lied to police about his involvement in the burglaries but as noted ante, he later agreed to cooperate with law enforcement.
Investigator Holmes testified that on this day, phone records showed an outgoing call from Venegas's phone to Antar's phone at 10:25 a.m. lasting two minutes eight seconds that connected to a cell tower near Venegas's (mother's) home. The records further showed an incoming call from Aguirre's phone to Venegas's phone at 4:22 p.m., which accessed a cell tower about a mile away from the B.B. residence, and an outgoing call from Venegas's phone to Antar's phone at 4:50 p.m. lasting for 42 seconds that accessed a cell tower about a quarter-mile north of Venegas's home. At 5:10 p.m., records for Montes's phone showed an outgoing call accessed a cell tower near the Jewelers Exchange in downtown San Diego, where Venegas and his crew would take the loot after a burglary, and when Venegas alone would meet with Antar and return with money.
On this record, we conclude substantial evidence, and the inferences to be drawn from such evidence, supports Antar's conviction on counts 6 and 7 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 8:
E.L. testified that on September 12, 2012, he resided in a home located on Santa Maria Court in Chula Vista. At about 3:00 p.m. that day as he was leaving in his car, E.L. saw two Hispanic males in front of his home. E.L. estimated the males were in their late 20's. E.L. returned about an hour later, at the same time his wife separately arrived home. When E.L.'s wife went into the house, she found muddy shoe prints in the dining room area and on the stairs, which she initially blamed on E.L. On investigation, E.L. saw the blinds on a window in the dining room had been "pushed out," shards of glass were lying on a table, and a "big, solid rock" used to break the window was also on the table.
Inside the master bedroom, E.L. found everything was "tossed and turned." E.L. testified that "hundreds of pieces" of his wife's jewelry they kept hidden in one of their dressers was stolen. Also stolen was a jewelry box in which E.L. kept watches, bracelets, cufflinks, and "military paraphernalia." Like many of the other homes burglarized, E.L. found a pillowcase missing from a bedroom pillow.
Aguirre was shown some text messages between her, Venegas, and Duron dated September 12, 2012. In one message, Aguirre informed Venegas and Duron she had just knocked on someone's door. In response, Duron instructed Aguirre, " '[address] knock on that one, too.' "
Per Investigator Holmes, phone records showed an outgoing call on Venegas's phone at 3:37 p.m. that accessed a cell tower near the E.L. residence on Santa Maria Court.
On this record, we conclude the evidence in connection with count 8, when considered in light of all the other evidence, and the inferences to be drawn from such evidence, supports Antar's conviction on count 8. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 9:
V.A. testified that on September 19, 2012, he resided in a home located on Via Hacienda in Chula Vista; that he left his home at about 1:00 p.m. to pick up his granddaughter from school; that as he was dropping off his granddaughter at about 3:30 p.m., his daughter informed him the alarm company had called and advised her that V.A.'s house alarm had been activated; and that he immediately drove home, opened the front door, and saw "glass scattered" everywhere, as if there had been an "explosion." Like many of the other break-ins, V.A. saw a sliding glass door in the family room had been shattered with a brick, which was lying on the floor.
In the dining room area, V.A. found desk papers scattered all over the floor. Inside the master bedroom, V.A. discovered all of his wife's jewelry had been stolen. Also stolen were watches; a souvenir knife collection; a $2 bill from Singapore; and his red Acura, which he kept in the front driveway. Police recovered the Acura about three days after the break-in. V.A. noted the sound system in the car had been damaged, as had one of the seats.
In summer 2013, V.A. went to a sheriff's station to view various items of property recovered by law enforcement. V.A. was able to identify the $2 bill and one of the knives he kept in his nightstand.
Aguirre was shown a text message dated September 19, 2012, in which she wrote Venegas, " 'where are you[?]' " Aguirre testified she sometimes would message or call Venegas when he was taking too much time inside a home or to warn him about someone coming or something being amiss.
Cell phone records showed a call that day from Antar's phone to Venegas's phone at 11:52 a.m. lasting one minute 34 seconds. At about 2:37 p.m., phone records showed an outgoing call from one of Aguirre's phones that accessed a cell tower about half a mile from the V.A. residence. At 3:21 p.m. there was a call from Antar's phone to Venegas's phone lasting 59 seconds, which accessed a tower about a quarter of a mile from the V.A. residence. At 4:47 p.m., Aguirre's phone received an incoming call that accessed a tower near the Jewelers Exchange in downtown San Diego, where Venegas and his crew traveled after almost every burglary so that Venegas could meet Antar and exchange the loot for money.
On this record, we conclude substantial evidence supports Antar's conviction on count 10 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 11:
L.L. testified that she resided in a home located on Tim Street in Bonita on October 10, 2012; that she left the residence at about 10:00 a.m. and returned a few hours later; that on returning, she found the front door open and papers on the stairway; that when she went into the kitchen, she found the screen covering the window had been cut; and that when she went into the master bedroom, she found "everything [was] scattered."
On investigation, L.L. testified her jewelry and her husband's jewelry was stolen, as was the "pink slip" and a car key to her Mercedes Benz. Like many of the other victims burglarized in the conspiracy, L.L. found kitchen knives on a table next to the bed and on the bed itself, and a pillowcase missing from a bedroom pillow.
Aguirre recalled the L.L. home from its long driveway. Aguirre further recalled Venegas and Duron going into this home and returning with "a lot of gold" including "chains, necklaces, rings [and] bracelets." Aguirre specifically recalled Venegas bragged about how much gold they had stolen from this particular home, noting they had hit the "jackpot." A photograph from Aguirre's cell phone taken at 2:23 p.m. on the same day of the L.L. burglary showed Venegas wearing three gold chains ostensibly stolen from this home.
Aguirre testified there was a "gap" between the end of September and the beginning of October 2012 when they were not burglarizing homes because she and Venegas had a falling out after Aguirre learned she was pregnant with his child. She further testified that, when she was arrested on November 28, 2012, after a police chase (discussed post in connection with count 35), police found a "pink slip" in Aguirre's car that had been stolen from the L.L. home.
Cell phone records for this day showed an outgoing call from Venegas's phone to Antar's phone at 2:17 p.m. lasting one minute 25 seconds that connected to a cell tower a mile west of the L.L. residence. At about 2:56 p.m., Aguirre received a call on one of her cell phones that accessed a tower in downtown San Diego, near the Jewelers Exchange. At 5:52 p.m. there was an outgoing call from Venegas's phone and at 5:55:39 p.m., there was an incoming call from Antar's phone to Venegas's phone that lasted only two seconds. However, 10 seconds later, the records showed an incoming call from Antar's phone to Venegas's phone lasting two minutes one second.
On this record, we conclude substantial evidence, and the inferences derived therefrom, supports Antar's conviction on count 11 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 12:
C.S. testified that on October 16, 2012, she resided in a home located on Camino Elevado on the border of Chula Vista and Bonita; that when she returned home from work at about 4:30 p.m. that day, she opened her garage door and found a bicycle displaced on the floor; that she opened her door to the family room and saw a "big mess"; that an aluminum block she kept outside had been thrown through a window in her home office, scattering glass on the floor; that in several of the rooms, items were taken out of drawers and thrown onto the floor; and that many precious heirlooms that had been in her family for generations had been stolen.
C.S. estimated that she lost close to $50,000 in jewelry and foreign currency, which she had collected in her travels. Like many of the other burglary victims, C.S. stated a pillowcase from a bedroom pillow was missing. After the break-in, C.S. went to a sheriff's station on at least two occasions and also viewed pictures at least once in an attempt to identify some of the stolen items. C.S. identified a gold bangle bracelet; some crystal; two plates; a specially ordered thumb drive; and what she described as some "junkie stuff." According to C.S., the items recovered and returned to her were of minimal value in contrast to the items that were stolen.
Cell phone records showed phone activity that day between Venegas's and Duron's phones at 2:44 p.m. near the C.S. residence. In addition, at 4:31 p.m. there was an incoming call from Antar's phone to Venegas's phone lasting 25 seconds; and at 4:44 p.m., there was an incoming call from the Duron phone to the Venegas phone that accessed a cell tower in downtown San Diego, near the Jewelers Exchange where, according to Aguirre and Montes, Venegas alone would meet Antar and exchange the loot for money.
On this record, we conclude substantial evidence supports Antar's conviction on count 12 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 13:
Chula Vista Police Officer Carlos Marques testified that he was on patrol in the evening of October 17, 2012, when he was dispatched to a home on Huerto Place in Chula Vista; that Officer Marques contacted the homeowner, A.M.; and that once inside, it appeared the home had been "ransacked" as "[d]rawers were out, clothing [was] on the floor, various items throughout the—on the floors, beds." On the north end of the house, Officer Marques found a bedroom window had been smashed, ostensibly by a "roof tile" that was lying nearby on the ground.
Cell phone records for October 17, showed an incoming call from Antar's phone to Venegas's phone at 1:27 p.m.; and phone activity between Aguirre's phone and Venegas's phone at 2:36 p.m. that accessed a cell phone tower about a mile south of the A.M. residence. At 3:40 p.m., there was an incoming call from Antar's phone to Venegas's phone; at 4:14 p.m. there was a call lasting 33 seconds from Venegas's phone to Antar's phone; and at 4:43 p.m., there was an outgoing call from Venegas's phone that accessed a cell tower in downtown San Diego, near Antar's "store" in the Jewelers Exchange where Venegas and Antar always met.
On this record, we conclude substantial evidence supports Antar's conviction on count 13 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Counts 14 and 15:
Both of these counts took place on October 19, 2012. In connection with count 14 involving attempted first degree burglary, retired San Diego Police Officer D.H. testified he then resided on Encantada Court in Chula Vista; that after he arrived home that day, someone rang the doorbell over and over again for about 20 to 30 seconds, as if the person was in "panic mode"; that when he peeked out the window, he saw an unrecognizable white Cadillac parked in his driveway; and that he then went to the front door and saw a Hispanic female at the door, whom he also did not recognize. As a result, D.H. neither answered the door nor alerted the female to the fact he was home. A short time later, D.H. saw the white Cadillac leave the cul-de-sac.
About 10 minutes later, D.H. heard a loud "banging" noise at the back of his home. D.H. testified that when he had come home, he had opened a sliding glass door but had purposely kept the screen closed; that on investigation, he saw the screen door had been opened about a foot; and that he then went outside but saw nobody. About an hour later, a neighbor contacted D.H. D.H. went to the neighbor's home and saw "[e]verything was kind of messed up and out of place."
Aguirre testified she recalled the D.H. home, which had an American flag hanging "in front." Aguirre drove her pearl white Cadillac, which she had purchased in mid-August 2012, to this home and, at Venegas's request, rang the doorbell and then reported back to Venegas and Duron that nobody had answered. When Duron left and then returned to the car, he told Aguirre as soon as he had opened the back door to this home he saw someone inside, walking down the stairs. Duron thus quickly returned to the car.
J.C. testified in connection with count 15 that he resided in a home located on Encantada Court in Chula Vista, next door to the D.H. home; that on the day of the break-in, he left home at about 1:30 and returned at about 4:00 p.m.; that as he went inside, he found bags of new clothing by the front door, which previously had been upstairs; that there was a similar bag on top of the car parked in the garage; that the hood to the car was open, as was the driver's side door; that everything in the living room had been thrown around; and that one of the screens to a window in the back of the house had been removed and the window opened. Before the break-in, J.C. estimated he and his wife had about 12 such bags of clothing. After the break-in, his wife found only two such bags upstairs.
Besides bags of clothes, items taken from J.C.'s home included a bracelet that was in his son's bedroom; his wife's gold necklace; some jewelry including a rosary; and $560 in cash among other items. Also taken was the family's two-month-old German Shepherd puppy.
Aguirre testified when Venegas returned from the J.C. home he stated it was full of new clothes and not worth the money to carry all of them out to the car. As they were driving away, Aguirre recalled seeing a German Shepard puppy running toward them. At Duron's request, Aguirre stopped the car and Duron, in response, called out to the dog. When the dog approached the car, Duron picked it up and they drove off.
A photograph taken from Antar's computer discovered as a result of the December 3, 2013, search of his "store" showed a rosary sitting atop a laptop matching Antar's laptop computer. The photograph was taken at 5:25 p.m. on October 19, 2012—the same day the J.C. home was burglarized and a rosary was taken.
Investigator Holmes testified that cell phone records for counts 14 and 15 showed an incoming call from Antar's phone to Venegas's phone at 12:57 p.m. Between 3:48 and 4:01 p.m., there were four calls from Duron's phone that accessed a cell tower about a "quarter mile or less" from the D.H. and J.C. residences.
On this record, we conclude substantial evidence supports Antar's conviction of attempted first degree burglary as charged in count 14 and of first degree burglary as charged in count 15 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 16:
R.R. testified that on October 23, 2012, she resided in a home located on Choc Cliff Drive in Bonita; that on this day, she left the house at about 10:30 a.m. and went to visit her husband in the hospital; and that when she returned with her daughter at about 9:00 p.m., they found the lights in the garage on and the door to the house unlocked. On entering the home, R.R. found her husband's old wallet on the floor. R.R. also found a screwdriver had been left on a table by the stairs. When she went to the back of the house, she found the French doors leading to the patio had been "pushed in" and "broken."
Inside the master bedroom, R.R. found all of her belongings "thrown on the floor" and "all over the place." Like many of the other homes burglarized in the conspiracy, R.R. found missing a pillowcase from one of the bedroom pillows. Also taken was her jewelry and a small safe that contained important papers.
Aguirre recalled the R.R. home from its driveway and the steps to the front door. Aguirre further recalled Duron and Venegas stole a safe from this home. Afterwards, Aguirre testified that they all went to Venegas's home, where they used a drill to open the safe.
Investigator Holmes testified cell phone records from this date showed an incoming call from Antar's phone to Venegas's phone at 11:29 a.m. At 1:31 p.m., a call from Venegas's phone to one of Aguirre's phones connected to a cell tower about a mile south of the R.R. residence. The records further showed an incoming call from Antar's phone to Venegas's phone at 3:15 p.m. lasting 43 seconds, which accessed a tower about a quarter-mile east of Venegas's home, and an incoming call to Duron's phone at 3:53 p.m. that accessed a cell tower in downtown San Diego, near the Jewelers Exchange where Antar's "store" was located and where Antar would meet Venegas after almost every burglary.
On this record, we conclude substantial evidence supports Antar's conviction on count 16 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 17:
G.L. testified that on October 24, 2012, he resided in a home located on Oakpoint Avenue in Chula Vista; that when he returned from work that day at about 5:00 p.m., he found his sliding glass door in the back of the house "totally shattered"; that on top of the kitchen table was a rock from his backyard that had been used to break the glass; and that the inside of his house was "[a]ll ransacked." In particular, G.L. stated the dresser drawers in the bedroom were "torn out," his clothes were scattered across the floor, and the mattress was "tossed over." Missing from the house were signed baseballs G.L. collected; jewelry; and a laptop computer. A few months after the break-in, G.L. went to a sheriff's station but could not identify any items taken from his home. At some later point, he was shown photographs that included some of the signed baseballs that had been stolen from his home on October 24.
Aguirre recalled the burglary of the G.L. home from the "old baseballs" they had stolen.
Investigator Holmes testified that cell phone records from this date showed an outgoing call at 2:45 p.m. from one of Aguirre's phones that accessed a cell tower about a mile and a quarter from the G.L. residence. At 2:51 p.m., there was an incoming call to Venegas's phone from Antar's phone lasting one minute 21 seconds, which accessed a tower about a mile from Venegas's home.
On this record, we conclude substantial evidence—and the inferences to be drawn from such evidence—supports Antar's conviction on count 17 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 18:
P.F. testified that on October 25, 2012, she resided in a home located on Kent Street in Chula Vista; that as she approached the home at about 7:45 p.m., she saw the garage door and the door leading to the inside of the house open; and that she then noticed her parents' car, which had been parked in the garage, was gone. P.F. noted the mailbox in the front of the house was "totally off the bolts on the sidewalk, it was scraped on the side, and was pushed over" near some bushes. P.F. immediately called 911.
From the outside, P.F. saw a screen missing from a window in the master bedroom. After the home was secured, she went inside and found a scrape on the wall in the hallway and her parents' room "ransacked." On the floor in her parents' room, P.F. saw a blue-lined gun case had been opened, with the gun missing.
P.F.'s father, A.F., testified that his daughter lived at the family home; that he owned a commemorative weapon, which he kept in a blue-lined gun case; that the car taken from the home was recovered the same day as the break-in; that a handicap placard he kept inside the car was missing when the car was recovered; and that also taken from the house were three firearms, $4,000 in cash, a Rolex watch, and myriad "Marine Corps commemorative coins."
Aguirre recalled the burglary of the P.F. home from the "little trailer parked" in the front. Aguirre remembered driving Venegas and Duron to this home in her Cadillac. Items subsequently recovered from Aguirre's car were traced back to the P.F. burglary.
Investigator Holmes testified that cell phone records from this date showed an incoming call at 10:29 a.m. from Antar's phone to Venegas's phone lasting one minute 27 seconds. At 3:32 p.m., phone records showed an outgoing call from Duron's phone that connected to a cell phone tower about three-quarters of a mile south of the P.F. residence. Beginning at 4:58 p.m., the records showed three incoming calls in rapid succession to Venegas's phone that accessed a cell tower in downtown San Diego, near Antar's "store" in the Jewelers Exchange. Finally, at 8:49 p.m. there was incoming call from Antar's phone to Venegas's phone.
What's more, a photograph of a shotgun with a United States Customs logo taken on October 25, 2012—the same day as the burglary of the P.F. residence—was found on Antar's computer. The photograph was taken with a smartphone and the GPS coordinates showed it was snapped about a "mile" from Kent Street, where the P.F. home was located.
Also found on Antar's computer was a photograph of a gun with a "US Customs Special Agent label." Like the first, this second photograph was taken on October 25. The GPS coordinates of the second photograph showed it was snapped in the "same area" as the first photograph, but it appeared that, whomever took the picture with a smartphone, was moving in a "westbound" direction.
Another picture of a "black and white design" was also found on Antar's computer and was taken at 4:18 p.m. on the same day the P.F. home was burglarized. Like the first and second photographs, the third photograph was snapped in the "same general area" using a smartphone, and, based on GPS coordinates, showed further movement in a westbound direction.
On this record, we conclude substantial evidence supports Antar's conviction on count 18 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 19:
A.A. testified that on October 31, 2012, she resided in a home located on Wheeling Lane in Bonita; that when she came home at around 2:30 p.m., she found the "whole house" had been "ransacked"; that drawers "were pulled out, clothes [were] everywhere," and items that had been on the cabinets "were knocked down, like literally everything was everywhere"; that a diamond ring and some costume jewelry were taken; and that the door to her parents' room, which she kept locked, was broken. Inside her parents' room, A.A. found two large butcher knives on the floor.
A.A.'s mother, M.A., confirmed that the family home was broken into on October 31; that her daughter A.A. and her own mother were the first to discover the break-in; that on inspection, M.A. found all her jewelry had been stolen, including her wedding ring, a black pearl necklace, and a gold chain necklace; and that some expensive purses and $400 in cash were also missing. M.A. stated at some point after the break-in, they went to a sheriff's station to view items recovered by police. She only identified a single black pearl earring belonging to her.
Investigator Holmes testified that cell phone records from October 31, 2012, showed an outgoing call from one of Aguirre's phones at 1:44 p.m. that accessed a cell tower less than a quarter-mile west of the A.A. residence. At 2:22 p.m., a call was placed from Venegas's phone to Antar's phone lasting 38 seconds, which accessed a cell tower about a mile and a quarter from the A.A. home. Beginning at 3:07 p.m., there were four calls from Venegas's phone that accessed a cell tower in downtown San Diego, near the Jewelers Exchange where Venegas and Antar would meet after the burglaries.
On this record, we conclude substantial evidence supports Antar's conviction on count 19 under a conspiracy theory of vicarious liability. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 20:
S.K. testified that on November 1, 2012, she resided in a home located on Redlands Place in Bonita; that when she arrived home that day, a neighbor informed her that her house had been burglarized; and that when she entered the home, like many other victims she found a back bedroom patio door had been smashed and her bedroom "completely trashed." Missing from the house was a "great deal of jewelry," including a collection of opals, and a tablet.
S.K. was invited by detectives to a property viewing in both 2013 and 2014. At the first viewing in 2013, she was unable to identify any of her missing property. At the second viewing in 2014, she identified a silver necklace and bracelet; a few pieces of costume jewelry; and a turquoise silver ring.
According to investigator Holmes, cell phone records for this date showed an incoming call at 8:43 a.m. from Antar's phone to Venegas's phone; an outgoing call from Venegas's phone to Antar's phone at 11:02 a.m. lasting one minute 22 seconds; and a minute later, an outgoing call from Venegas's phone to Fults's phone. Both of these calls accessed the same cell tower. At 2:51 p.m., Venegas's phone received an incoming call that connected to a tower about a quarter-mile west of the S.K. residence.
Beginning at 3:10 p.m., cell phone records further showed three outgoing calls all within a few seconds of each other from Venegas's phone to Antar's phone that connected to a tower about a quarter-mile from the Jewelers Exchange, where, according to Aguirre and Montes, Venegas would go and exchange the loot for money. Also at 3:10 p.m., there was an outgoing call from Venegas's phone to Antar's phone lasting one minute 15 seconds; and another call from Venegas's phone to Antar's phone at 3:12 p.m. lasting 43 seconds.
On this record, we conclude substantial evidence supports Antar's conviction on count 21 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Counts 22 and 23:
Counts 22 and 23 took place on November 2, 2012. C.M. testified in connection with count 22 that she resided at a home on Southview Circle in Chula Vista; that on this day, she stayed home sick; that while her children were napping, she heard the doorbell ring; that because she was not feeling well, she ignored it until someone started "pounding" on the front door; that because she did not want her children awakened, she went downstairs, peeked outside, and saw a female knocking on the door; that the female was petite, in her early 20's, had dark hair and a large, "very elaborate," "colorful" tattoo on her arm/shoulder area; and that when she opened the door, the female asked for a person C.M. did not recognize.
Shortly after C.M. returned upstairs, she heard a "really loud noise." She went back downstairs, looked out the window, but saw nothing. Later that afternoon, C.M. learned there had been a burglary at her neighbor's house, the J.S.'s (i.e., count 23). A few months after this incident, C.M. was contacted by detectives. After being admonished, C.M. was shown a photographic lineup and identified photograph No. 2 as the female who had banged on her door on November 2. That female was Aguirre.
J.S. testified in connection with count 23 that, shortly after 2:00 p.m., he and his wife left their home and headed out of town; and that about 20 minutes later as they were driving, the alarm company called and informed him various "sensors" had been activated in the home. As a result, they returned home to find police cars parked in front of their house. After deactivating the alarm, J.S. saw the back sliding glass door had been shattered. J.S. also noticed a fresh "oil stain" in the driveway. On inspection, J.S. found a "dent" in a patio chair, which he surmised had been used to smash the glass door.
Inside the master bedroom, J.S. found all the clothes had been pulled out of drawers, and his wife's jewelry boxes empty. Also taken was a duffle bag.
J.S.'s wife, S.S., testified "gold shells," bracelets, and various other items of jewelry were stolen during the break-in; that at some later point, perhaps January 2013, a detective contacted her and showed her some pictures of items that had been recovered in a car; and that from these pictures, she identified bracelets, a couple of rings, and a medallion that belonged to her.
Cell phone records for November 2, 2012, showed an outgoing call from one of Aguirre's phones accessing a cell tower about three-quarters of a mile from Fults's residence located in the Spring Valley area. At 2:26 p.m., there was an incoming call to Venegas's phone that accessed a cell tower about a mile north of the C.M. and J.S. residences and at 3:58 p.m. there was an outgoing call from Venegas's phone to Antar's phone lasting 33 seconds. Finally, at 4:15 p.m., records showed an incoming call from Fults's phone to Venegas's phone that accessed a cell tower about a quarter of a mile from the Jewelers Exchange, where, according to coconspirators Aguirre and Montes, Venegas would go to meet Antar to exchange the loot for money.
On this record, we conclude substantial evidence supports Antar's conviction for attempted first degree burglary in count 22 and for first degree burglary in count 23 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 24:
K.D. testified that, on November 5, 2012, she and her husband, D.D., were residing in a home on Bonita Woods Drive in Bonita; that when she came home from church that day at 1:30 p.m., she found all of the drawers in the exercise room opened and their contents "dumped out" on the floor; that someone had removed the screen from, and entered the house through, a window in the home office; and that "every piece of jewelry" was taken, including items belonging to her husband, and jewelry that belonged to her biological mother.
In summer 2013, and again in about January 2014, when stolen items were recovered from Antar's "store," K.D. and D.D. went to a sheriff's station and identified "quite a few things" that had been taken, including an earring; a gold necklace "without the solitaire"; another necklace; multiple watches; two "[t]ooth fairy" "shaped containers"; a coin from the 1500's; various bracelets and pendants; and company pins.
D.D. testified he was at a doctor's appointment at the time of the November 5 break-in; that he and his wife twice went to property viewings; that he was able to recognize a service pin from his company; a Spanish coin that was missing its golden bezel; a class ring; and some watches that belonged to his grandfathers.
Aguirre recalled the K.D. home from its gate. Aguirre testified that she drove Venegas and Duron to this home in her Cadillac. After she knocked on the front door and nobody answered, Venegas and Duron entered the home.
Cell phone evidence for this date showed an incoming call to Venegas's phone from Antar's phone at 12:11 p.m. lasting one minute 22 seconds; an incoming call from Fults's phone to Venegas's phone at 1:54 p.m. that accessed a tower about a quarter of a mile away from the K.D. residence; an outgoing call from Venegas's phone to Antar's phone at 2:13 p.m. lasting 44 seconds; and an outgoing call from Duron's phone at 2:42 p.m. that connected to a cell tower about a quarter-mile northeast of Antar's "store" located inside the Jewelers Exchange.
A photograph dated November 5, 2012—the same day the K.D. residence was burglarized—taken at 3:25 p.m. by a smartphone was recovered from Antar's computer. This photograph showed "an assortment of jewelry." Another photograph from this same date also found on Antar's computer showed someone holding a "plastic bag of assorted and loose jewelry." When this photograph was compared side-by-side with a photograph of Venegas's hand, which was tattooed with " 'Paulina' and 'Cash Only,' " it appeared there were similarities with respect to the "loop" in the " 'y' " in "Only" and the " 'h' " in "Cash."
Based on this evidence, we conclude Antar was properly convicted on count 24 of first degree burglary under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 26:
J.B. testified that on November 8, 2012, he resided at a home located on Lavade Lane in Bonita; that when he arrived home from work at about 4:00 p.m., he entered through the front door and found the contents from the front closet on the floor and the living room television set missing; that many items that had been in drawers had been pulled out and thrown on the floor, including in the kitchen and in the bedrooms; and that when he went into the garage, he found his truck, which had "two amps, three speakers, in the back," had been stolen.
Upstairs, J.B. found his wife's jewelry and a large, flat screen television missing. Like many other victims in the burglary ring, J.B. found kitchen knives in areas that had been ransacked. Also missing from the house was his wallet; his wife's tablet; and a .40-caliber firearm.
Aguirre testified extensively about the burglary of this particular home. She recalled driving Venegas and Duron to this home and both of them going inside. Sometime later as she waited for them in her Cadillac, Aguirre saw the garage door to the home open and Venegas and Duron leave in a vehicle. Aguirre saw there was a flat screen television inside the stolen vehicle.
Aguirre followed the vehicle in her Cadillac. At some point, they stopped in the Fashion Valley area in front of a white house. According to Aguirre, Venegas stated they were at "Sam's" house. Aguirre testified that as she waited in the Cadillac, she saw but did not talk to "Sam"; that this was the second time she had seen Antar; and that the first time she saw Antar he was exiting the Jewelers Exchange as she, Venegas, and Duron were driving away after Venegas met Antar to exchange loot for money. Aguirre identified Antar in court.
Aguirre recalled that shortly before the tandem drove to Antar's home, they stopped "somewhere near downtown." It was then Aguirre looked in the back of the stolen vehicle and saw it contained an extensive stereo system, which she described as consisting of "speakers" and a "box." During this short stop, Venegas and Duron transferred the stolen flat screen television into the back of Aguirre's car. Aguirre heard Venegas and Duron talking about "stripping" down the stolen vehicle. Aguirre recalled this burglary involved a "military home" based on various stickers or decals on the stolen vehicle.
Although this evidence alone is more than sufficient to support Antar's first degree burglary conviction on count 26, there is more. Cell phone records for this date showed two incoming calls from Antar's phone to Venegas's phone at 11:03 a.m. and at 12:24 p.m.; an outgoing call from Venegas's phone to Antar's phone at 12:42 p.m. lasting one minute three seconds; and an outgoing call from Venegas's phone to Fults's phone at 2:34 p.m. that accessed a tower about a mile west of the J.B. residence.
Phone records further showed an outgoing call from Venegas's phone to Antar's phone at 2:50 p.m. lasting one minute 39 seconds, which accessed a cell tower about a mile west of the J.B. residence. Beginning at 3:27 p.m., the records showed a series of calls involving the phones of Venegas and Antar, including two calls at 4:08 p.m.; another call at 4:23 p.m. lasting one minute 50 seconds; and two more calls at 4:49 p.m., one of which lasted 51 seconds. At 4:54 p.m., there was an outgoing call from Venegas's phone to Antar's phone that accessed a cell tower about a quarter-mile from the Jewelers Exchange, where Venegas met Antar to swap the loot for money.
In addition, Antar's computer was found to have several photographs taken by a smartphone on November 8, 2012—the same day the J.B. residence was burglarized—of a flat screen television. A forensic analysis of Antar's computer showed someone had searched the Internet at about 4:15 p.m. that same day concerning the same model of flat screen television shown in the photographs. Also found on Antar's computer were photographs of an equalizer and speaker equipment. Those photographs also were taken using a smartphone and were dated November 9, the day after the J.B. burglary and the theft of the vehicle containing extensive stereo equipment.
Based on this evidence, which is more than sufficient, we conclude Antar was properly convicted on count 26 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Counts 27-32:
Counts 27-32 all took place on November 13, 2012. In connection with count 27, E.M. testified she resided in a home located on Forester Lane in Chula Vista; that on this day she left home around 8:00 a.m. and returned about 1:00 p.m. after bagging groceries for the poor; that on entering her cul-de-sac, she saw for the first time a light-colored Cadillac parked in front of a neighbor's house; and that inside the Cadillac was a female with long dark hair sitting in the driver's seat and a male sitting next to the female.
Once inside the residence, E.M. noticed the screen to the sliding glass door had been opened and her two indoor cats, who normally greeted her on arrival, were "nowhere to be found." As she opened the sliding glass door, E.M. heard a "squeak[ing]" sound coming from the laundry room area. On investigation, she found a pet door on the laundry room door open about five inches. Panicked, E.M. also saw the door from the laundry room, which led outside, ajar.
Inside the master bedroom, E.M. found items scattered on the floor "in disarray." She found her jewelry box almost completely empty except for a pair or two of "cheap earrings." Also missing were her gym bag; money; and tie clips among other items. Like many other victims, E.M. found kitchen knives in the area that had been ransacked during the break-in, including one knife on a counter near the master bathroom and another knife on the floor, underneath clothing that had been pulled out of the walk-in closet.
C.D. testified in connection with count 28 that she resided in a home located on Bonita View Drive in Bonita; that after being picked up at work that day by her husband, they approached their home and saw a white Cadillac parked next to their driveway; and that C.D. immediately became concerned because a female with long hair was sitting in the driver's seat and the female appeared to be nervous, as her hands were "shaking." According to C.D., as soon as she and her husband drove up, the Cadillac sped off.
Once inside the home, C.D. found items littered on her bedroom floor. C.D. was "shock[ed]" by the condition of her bedroom. Items taken from the house included "a lot of jewelry" including some belonging to her mother, a Rolex watch, a graduation ring, as well as multiple purses and clothes.
About three days after the break-in, C.D. met with detectives. Using a photographic lineup, C.D. identified the female she had seen "shaking" in the Cadillac. The female was later identified as Aguirre. C.D. also identified the white Cadillac from another photograph. C.D. testified she went to a property viewing in 2013, but was unable to identify any items that had been stolen from her home.
Aguirre recalled driving Venegas and Duron to this home in her Cadillac; and that they went inside the home while she waited in the car.
In connection with count 29, R.S. testified that his mother, M., resided in a home on Bonita View Drive in Bonita; that on this day, R.S. drove his mother home and when he opened the front door at about 6:30 p.m., he immediately felt a "draft"; that on inspection, he found the sliding glass door in the dining room open; that when he went into his niece's room, he saw her things had been pulled out of drawers and "thrown all over the floor"; that he found his mother's bedroom in the same condition as his niece's bedroom; that his mother was missing jewelry; and that while they waited for police to arrive, they went outside and discovered the neighbor's house directly across the street (i.e., count 28) also had been burglarized.
Aguirre recalled the R.S. home. She testified she knocked on the front door and, when nobody answered, Venegas and Duron went inside while she kept watch in her Cadillac. Shortly thereafter, Venegas and Duron returned with "bags" and "purses." As Venegas and Duron were getting into Aguirre's car, the neighbors who lived across the street came home. According to Aguirre, Venegas instructed Aguirre to drive off.
J.M. testified in connection with count 30. J.M. resided at a home located on Paseo Della Vista in Bonita; that he rented a portion of his home to J.St. and J.St.'s wife; that when J.M. returned home midday and went upstairs, he saw the door to J.St.'s room at the end of the hallway had been broken; that when he went into his wife's bedroom, he saw her things had been thrown on the floor; and, like many other homes burglarized during the conspiracy, he found a knife had been left in the area searched during the break-in. J.M. testified two of his watches were stolen.
J.St. testified he and his wife were living in the J.M. residence on the day of the break-in; that their entrance was separate from the J.M. entrance; that their entire unit had been "totally ransacked"; and that among the items taken from them was a $4,000 12-gauge shotgun that was a collector's item.
Aguirre recalled the burglary of the J.M./J.St. residence. She testified that she went to the front door, knocked, and nobody answered. Venegas and Duron next entered the home and were inside for about 30 minutes. As they were leaving the home, the owner arrived. Aguirre in response drove her Cadillac down a grassy hill and picked up Venegas and Duron, who had fled down the hill. Aguirre recalled an "antique shotgun" was taken from this home.
N.L. testified that, in connection with count 31, she resided in a home located on Snaffle Bit Place in Bonita; that she left the house at about 2:15 p.m. to pick up her children at school and returned at about 6:00 p.m.; and that when she pulled into the garage, she noticed cabinet doors open, a car seat from her husband's truck on the garage floor, and the door to her husband's truck open. On inspection, N.L. saw some boxes in the bed of the truck, which had been full of sports memorabilia, open and their contents disturbed.
Scared, N.L. waited for her husband to arrive before going inside the house. Once inside, they saw the kitchen window wide open and its screen removed. Missing from downstairs was a laptop computer. Upstairs, they found the master bedroom had been "completely torn apart." Among items taken from the upstairs were jewelry, including wedding rings and wedding bands; her daughter's iPod; and a backpack. As was the case in many of the homes burglarized during the conspiracy, N.L. found a kitchen knife on the bedroom floor, next to the nightstand.
In connection with count 32, D.C. testified that he resided in a home located on Sprinter Lane in Bonita; that at about 2:50 p.m. on this day, he received a call from his alarm company that someone was inside the house; and that as a result of this "emergency," he went home and found the screen covering the master bathroom window removed and the window, which was "[c]losed at all times," open.
After police arrived and secured the home, D.C. went inside and like many other homes burglarized during the conspiracy, found it had been "ransacked" and it looked "like a tornado went through [it]." Items stolen included a laptop computer; jewelry; and a pair of glasses.
Aguirre recalled the D.C. home from its gated doorway.
Phone records for counts 27-32 showed a series of calls that morning between Fults's and Venegas's phones and later, between Venegas's and Antar's phones, including a call involving the latter two phones lasting one minute six seconds. Phone records further showed an incoming call from Venegas's phone to one of Aguirre's phones at 12:38 p.m. that accessed a tower within a few hundred yards of the J.M./J.St. residence (count 30, ante); another series of calls about three-quarters of a mile from the C.D. and R.S. residences (counts 28 and 29, respectively); and a call made at 4:01 p.m. from Venegas's phone to Antar's phone lasting 54 seconds, which accessed a cell tower about a quarter-mile east of the Jewelers Exchange, where Antar's "store" was located and where Venegas and Antar would meet to exchange the loot for money.
Based on this record, we conclude substantial evidence supports Antar's convictions on counts 27-32 under a conspiracy theory of vicarious liability. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 33 and 34:
The burglaries charged in counts 33 and 34 took place on November 15, 2012. M.J. testified that, in connection with count 33, he was residing in a home located on Rio Vista Lane in Bonita; that when he returned home from work that day at about 4:50 p.m. he noticed the front door was unlocked; that when he went through the front door, he heard a "crunching" sound under his feet; and that when he turned the light on, like many other victims of the burglary conspiracy he saw the sliding glass door near the kitchen had been shattered.
On investigation, M.J. saw that "most of the drawers were either opened or thrown on the floor" in his daughter's room and that her clothes "were scattered about." In the master bedroom, he found a crowbar and shovel had been left near the bed, and many drawers from the dresser had been opened and some thrown on the bed. Items stolen from the house included his wife's 14-karat gold wedding band; an antique wedding band; and an iPad.
Aguirre recalled this home from the trees and its garage. Aguirre stated Venegas and Duron entered this house while she waited in her Cadillac.
In connection with count 34, O.T. testified that she and her family resided in a home located on Wheeling Lane in Bonita; that at about 1:00 p.m. that day, she received a phone call from the alarm company informing her that the home alarm had been activated and that police had been dispatched; and that she arrived home about 15 minutes later. After police cleared the home, O.T. went inside and, as was common in many of the homes burglarized during the conspiracy, found the sliding glass door to a bedroom had been smashed with an object from the garden. Items stolen included a man's gold watch; at least 15 pairs of earrings including some that were gold; and about $2,000 in cash that was in a briefcase, which also was taken. In January 2014, O.T. went to a sheriff's station and identified the stolen briefcase, which was empty.
Aguirre recalled knocking at the front door of this house, returning to the Cadillac, and Venegas and Duron going inside as she waited in her car.
Per Investigator Holmes, cell phone records for this date showed phone activity involving Venegas's and Duron's phone about a mile south of the M.J. residence; about a mile and a half south of the O.T. home; and later, about a quarter-mile south of the Jewelers Exchange where Antar's "store" was located.
Based on this evidence, we conclude Antar was properly convicted on counts 32 and 33 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 35:
K.N. testified that on November 28, 2012, she and her family were residing in a home located on Bronco Place in Bonita; that at about 9:30 a.m., a neighbor called and informed K.N. her home alarm was sounding; that when K.N. arrived home with her husband at about 10:00 a.m., she was met by police; and that when they went inside, as was typical of many other homes burglarized during the conspiracy, they found a rock on the floor of the master bedroom and the sliding glass door smashed. K.N. described the bedroom as being in disarray, with clothes thrown on the floor and drawers and a jewelry box opened and emptied. Items taken from the home included not only jewelry, but also a suitcase that was kept in the closet; a leather bag; and a small box that had checks and other items inside.
Aguirre testified that, as she waited in her Cadillac in front of this home, she saw a neighbor watching her as he watered his lawn. Aguirre heard an alarm sound and called Duron and Venegas, but neither answered. Concerned they would be caught, Aguirre drove her Cadillac about three or four houses down the street, out of sight from the neighbor. At some point, another neighbor came outside and, according to Aguirre, "actually chased [Duron] and [Venegas]" down the street. Aguirre then received a phone call from Venegas instructing her to unlock her car doors. She saw Venegas and Duron climb out of a backyard about two houses down from the Nicholas home. Aguirre picked them up and they sped off down some "back streets of . . . [the] Otay Ranch area."
As she drove, Aguirre saw a police car traveling in the opposite direction. When the police car made a U-turn and began following the Cadillac, Venegas told Aguirre not to stop. Aguirre entered a freeway and drove to an area near Southeast San Diego, where one of her friends lived. Aguirre ended up crashing her car as she was being pursued by police. Although Venegas and Duron fled on foot, Aguirre stayed in the car because she was then about three months pregnant with Venegas's child. As noted ante, Aguirre was arrested that same day.
In a search of her car, police found a "pink slip" that had been taken from the K.N. residence; and a handicap placard that had been taken from the vehicle stolen from the P.F. residence (count 18, ante). Also found in Aguirre's car was a ring inscribed with the name, "[J.A.N.]"; a jewelry box; two pairs of gloves, including one pair of "mechanic-type" gloves; a safe; a wallet; a camera; and three cell phones. A picture taken from one of Aguirre's cell phones showed Venegas wearing some of the gold chains they had stolen from the L.L. home.
Cell phone records on this date showed an incoming call from one of Aguirre's phones to Venegas's phone at 10:45 a.m. that accessed a tower about a mile from the K.N. residence. There also was an outgoing and incoming call to Venegas's phone at 11:35 and 11:49 a.m., respectively, that accessed a tower in the same general area. At 12:24 p.m., there was an outgoing call from Venegas's phone to Antar's phone lasting 25 seconds; and an incoming call from Antar's phone to Venegas's phone at 12:30 p.m. lasting 45 seconds. The 12:24 and 12:30 p.m. calls connected to a cell tower near where the 5 and 15 freeways intersected, in an area also known as "Shelltown."
Following the high-speed chase, an incoming call to Venegas's phone at 3:34 p.m. accessed a cell tower about a quarter-mile from the Jewelers Exchange, where Antar's "store" was located. At 8:35 p.m. that night, there was an outgoing call from Duron's phone to the phone of Montes, a one-time conspiracy member.
On this record, we conclude ample evidence supports Antar's conviction on count 35 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 37:
C.Ma. testified that on March 11, 2013, she resided in a home located on Del Mar Trails Road in San Diego; that on this day when she returned home and entered through the garage at about 4:00 p.m., she found "bits of glass splattered between the kitchen and the dining room area"; that the front door was open about a foot; and that, like many other victims of the residential burglary conspiracy, a sliding glass door had been shattered to gain entry. C.Ma. also saw a rock from their yard lying on the floor.
Upstairs, C.Ma. found two big drawers to her bureau open and empty. Missing from the drawers were jewelry she had collected for more than 30 years; a teak box that contained letters from her mother; and coins. As was common in the burglary conspiracy, C.Ma. found a pillowcase from a bedroom pillow missing. Other items taken included a laptop computer and a gun owned by her husband.
Phone records from this date showed an incoming call to Fults's cell phone at 1:11 p.m. that accessed cell towers (because of a different technology used by one of the cell providers) anywhere from about a mile to within a few hundred yards of the C.Ma. residence. Beginning at 6:22 p.m., the records also showed a series of calls between Venegas's phone and the phones of Antar and/or Fults.
On this record, we conclude there is substantial evidence in connection with count 37, when considered in light of the whole record, to support Antar's first degree burglary conviction under a conspiracy theory of liability. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 38:
S.D. testified that on March 25, 2013, he lived in a home located on Amberglades Lane in San Diego; that after he returned home from lunch that day, he found a kitchen knife lying on a doormat located just outside the garage door; and that on investigation, he found two safes from two separate closets and a revolver missing. Near one of the closets that had been searched in the break-in, S.D.—like so many other victims—found another kitchen knife. Also like many other victims, S.D. found glass from a door had been "shattered," as if someone had "kicked" it in to gain entry into the home.
Besides the safes and revolver, other items stolen from the home included jewelry; a jewelry box; and a computer. Later in 2013, S.D.'s wife identified some documents that had been taken during the burglary; one of the safes that contained the documents; and the revolver that had been inside the safe.
Cell phone records from this date showed a series of calls between 2:39 and 2:44 p.m. involving Venegas's phone that accessed a cell phone tower about half a mile west of the S.D. residence. At 3:48 p.m., there was an incoming call to Venegas's phone from, and, at 4:02 p.m., there was an outgoing call from Venegas's phone to, Antar's phone, both of which accessed a cell tower about a quarter of a mile from Fults's residence. At 5:08 p.m., the records showed Venegas's phone received a call that accessed a cell tower about a quarter-mile from the Jewelers Exchange, where Venegas would meet Antar and exchange the loot for money. At 6:58 p.m., there were four outgoing calls from Venegas's phone to Antar's phone, including one call lasting one minute 13 seconds and another call lasting 34 seconds. At 7:18 p.m., there was another call from Venegas's phone to Antar's phone lasting 42 seconds, which accessed a cell tower about a half-mile east of the Jewelers Exchange.
On this record, we conclude there is more than sufficient evidence to support Antar's conviction on count 38 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 39:
C.G. testified that on April 2, 2013, he was living in a home located on Mustang Ridge Drive in the Carmel Valley area of San Diego; that he left home that day at about 11:15 a.m. and returned at about 12:35 p.m.; that on entry, he found glass on the floor in the breakfast nook area; and that when he entered his home office located at the back of the home, like so many other victims he found someone had used an item from outside (in this case, a stepping stone) to smash the glass in a dual pane door window to gain entry into the home. C.G. found an iPad missing from his office.
After police arrived and cleared the house, C.G. went upstairs and found his nightstand drawer resting on the bed. Missing from the master bedroom was a pearl necklace; a drawer from his late wife's antique jewelry box; about $600 in cash; and a laptop computer.
Cell phone records on this date showed an incoming call from Antar's phone to Venegas's phone at 9:49 a.m. lasting one minute 13 seconds; and an incoming call to Fults's phone at 10:25 a.m. that was connected to a tower about a mile or two from the C.G. residence. At 1:30 p.m., there was an incoming call from Antar's phone to Venegas's phone lasting one minute six seconds; at 3:39 p.m., there was an outgoing call from Venegas's phone to Antar's phone lasting 55 seconds; and at 5:16 p.m., there was an incoming call from Antar's phone to Venegas's phone.
At 10:16 p.m., there was an incoming call from Antar's phone to Venegas's phone that connected to a tower about a half to three-quarters of a mile from the Jewelers Exchange; at 10:20 p.m., there was an incoming call from Antar's phone to Venegas's phone lasting 35 seconds, which accessed a cell tower about a third of a mile north of the Jewelers Exchange; at 10:24 p.m., there was an outgoing call from Venegas's phone to Antar's phone also lasting for 35 seconds; and finally, at 10:30 p.m., there was an outgoing call from Fults's phone.
Based on this substantial evidence, we conclude Antar was properly convicted on count 39 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 40:
E.Z. testified that on April 4, 2013, she resided in a home located on Pine Glen Lane in El Cajon; that when she and her young baby arrived home at about 6:00 p.m., she climbed the stairs only to find a "little box" lying on the ground in the hallway; that she became frightened when she looked into her daughter's room and saw all the dresser drawers open; and that when she went into the master bedroom, she saw her dresser drawers open and found all of her jewelry, which she had collected for more than 18 years, missing. As a result of the burglary, E.Z. refused to remain living in the home.
E.Z. twice went to a property viewing in an attempt to identify items taken during the break-in. As a result of the viewings, she identified a handbag; a gold watch that belonged to her husband and a similar watch that belonged to her; her wallet and its contents; necklaces and bracelets; earrings; several crosses and a rosary; cuff links; and coins among other items.
Cell phone records from this date showed an outgoing call at 11:25 a.m. from Venegas's phone to Antar's phone lasting about one minute 36 seconds. That particular call accessed a cell tower about three-quarters of a mile from the E.Z. residence. Phone records further showed calls between the phones of Venegas and Antar at 12:19 and again at 12:42 p.m. The 12:42 p.m. call accessed a cell tower about a half-mile away from the Jewelers Exchange where, according to Aguirre and Montes, Venegas would meet Antar and exchange the loot for money.
What's more, a photograph found on Antar's computer taken on April 4, 2013—the same day as the E.Z. burglary—showed a ring resting on a "gram scale" on a desk inside Antar's office. From the photograph, it appeared someone was in the process of "weighing" the ring.
In light of such evidence, we conclude Antar's conviction on count 40 was proper under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Morante, supra, 20 Cal.4th at p. 433; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 41:
W.R. testified that on April 16, 2013, he and his wife resided in a home located on Eton Court in Chula Vista; that around 2:30 p.m. that day, he received a telephone call from his children that a door to the home was open; that when he arrived home, he found the door between the garage and kitchen completely broken from its frame; that he noticed his dog walked with a limp and appeared to have a lump on his head; and that right next to the dog door was a "cleaning stick" W.R. typically used to clean the pool.
On inspection, W.R. found that the master bedroom had been "completely tossed"; that the mattress was upside down; and that a safe kept in the closet had been torn from the wall and removed, ostensibly with either a crowbar or shovel, both of which had been left on the closet floor. The contents of the safe included guns; jewelry; money; pictures; documents; and family mementos among other items. Also taken from the house were his daughter's jewelry box; his children's "piggy banks"; an iPad; cameras; and video games. At a property viewing in summer 2013, W.R.'s wife, A.R., identified items taken from the home including their daughter's jewelry box; some of their passports; their son's baby teeth; watches; ammunition; and some jewelry.
A.R. testified that she went to two property viewings in an attempt to identify items stolen from their home. At the first viewing in 2013, she identified her wallet and its contents and a name tag she used for work. At the second property viewing in early 2014, after police searched Antar's "store," she identified several items of jewelry including pearls; rubies that had been removed from a gold setting; a locket; and earrings. A.R. further testified she knew Venegas because he was her nephew.
Phone records from this date showed two incoming calls to Fults's phone at 1:01 and 1:02 p.m., both of which accessed a cell tower about a quarter-mile north of the W.R. residence. Another call within the same general time frame involving Venegas's phone accessed a tower about a mile east of the W.R. home. At 1:41 and 3:03 p.m., there were incoming calls to Venegas's phone from Antar's phone; and at 3:55 p.m., there was an outgoing call from Venegas's phone to Antar's phone lasting 35 seconds. At 4:30 p.m., there was an incoming call to Fults's phone that accessed a cell tower about a quarter-mile west of the Jewelers Exchange. Near the same time, there was activity involving Venegas's phone that again accessed a cell tower about a quarter of a mile away from the Jewelers Exchange.
This evidence is more than sufficient to support Antar's conviction on count 41 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 42:
Harvey H.K. testified that on April 18, 2013, he resided in a home located on Willowmere Lane in the Carmel Valley area of San Diego; that during the night while on vacation, San Diego police called and informed him the residence had been burglarized; and that in response, H.K. called his son who lived about a mile away. On inspection, H.K.'s son found the garage door open and police at the residence.
Again, like so many other homes burglarized during the conspiracy, entry into the H.K. home was made through the back of the house by "smash[ing]" a window. Also like most, if not all, of the other burglaries, the master bedroom had been "torn apart" during the break-in. Items taken from the home included a safe weighing about a 100 pounds that had been in the closet in the master bedroom. The contents of the safe included family passports and jewelry among other items.
Also stolen was H.K.'s wife's car. When police found the car in Pacific Beach, its motor was running and its doors were open. Police tracked the car to H.K. When police went to the family home, it was then they discovered the home had been burglarized. In summer 2013, police notified H.K. his safe had been found, including some of its contents such as passports and the pink slips to various cars.
Cell phone records from this date showed an outgoing call from Venegas's phone to Antar's phone at 1:28 p.m. lasting one minute seven seconds, which accessed a cell tower about two and a half miles north of the H.K. residence.
We conclude this evidence, when considered in light of the record as a whole, supports Antar's conviction on count 42 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 43:
C.Mc. testified that in April 2013, she resided in a home located on Central Avenue in Bonita; that on April 1, she left at about 9:50 a.m. and returned about an hour later; that on returning, she found a "cupboard" open in the garage; that when she went inside the home, she found all the drawers in the kitchen had been opened and the back door "propped open" with a "big candleholder" from the patio; and that she immediately left the residence and called police.
After police secured the home, C.Mc. went back inside and found the doorknob to the laundry room door bent, ostensibly as a result of the door being pried open. Upstairs in the bedroom, C.Mc., like so many if not all other homes burglarized during the conspiracy, found it had been "ransacked." C.Mc. testified that many pieces of family jewelry, including items she and her husband had each received from their parents, was stolen.
On April 22, C.Mc.'s home was broken into a second time. At about 3:07 p.m. that day, her husband called and informed her the alarm company had contacted a neighbor because their alarm was sounding. When C.Mc. returned home, she saw a computer and television had been unplugged. Missing from the bedroom was jewelry that had not been taken during the first break-in and original "Barbie" and "Ken" collectible dolls that she stated were "worth quite a bit" of money. As was common in many of the other homes burglarized during the conspiracy, C.Mc. found a pillowcase from a bedroom pillow missing and a "butcher knife" from the kitchen lying on her bed.
C.Mc. attended two property viewings at a sheriff's station. She identified a bracelet and a pearl necklace that had been taken during the two break-ins.
Cell phone evidence for this date included more than 63 slides prepared by investigator Holmes involving cell phones used in the conspiracy that connected to cell towers near such locations as the Jewelers Exchange; the Venegas residence; the Fults residence; and the C.Mc. residence in Bonita.
In light of this substantial evidence, we conclude Antar was properly convicted on count 43 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 44:
M.D. testified that on April 23, 2013, he resided in a home located on Mountain Pass Road in San Diego; and that at about 3:00 or 4:00 p.m. that day, his girlfriend returned to the home and found its back door had been "smashed" and glass "everywhere." M.D. immediately came home and met police. On inspection, M.D. saw another window had been smashed and its screen removed.
After the home had been secured, M.D. went inside and found it had been "trashed"; that inside the master bedroom, "everything" had been gone through and thrown about, including the mattress; that a storage chest had been smashed against a wall, damaging both the floor tile and the wall; and that in several of the rooms, things had been taken out and thrown on the floor. Missing from the home was a safe and its contents including a firearm and jewelry. According to M.D., police later recovered papers that also had been in the safe.
Cell phone records from this date showed Fults's phone accessed a cell tower about a half-mile north of the M.D.'s residence. At 1:24 p.m., Venegas's phone made an outgoing call that accessed a cell tower in the same general location as the tower previously accessed by Fults's phone. At 2:36 p.m., there was an outgoing call from Venegas's phone to Antar's phone lasting 32 seconds. At 2:40 p.m., there was an incoming call to Venegas's phone from Antar's phone lasting 38 seconds, which accessed a tower about a mile east of the Jewelers Exchange where Antar's "store" was located.
In light of such substantial evidence, we conclude Antar was properly convicted on count 44 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 45:
J.Stu. testified that on May 8, 2013, she resided in a home located on Helix Street in Spring Valley; that when she came home from work at about 7:30 p.m., she discovered her bedroom window had been pried open and her screen had been cut and removed from the window; that everything inside her bedroom had been "tossed" about; that 12 jewelry boxes containing jewelry, coins from around the world, and a knife collection, had been taken; and that three pillowcases were missing from her pillows. In summer 2013 and again in early 2014, J.Stu. went to a sheriff's station and identified items taken from her home including a necklace and bracelet; a gold pin; a travel bag; an arrowhead she had found while hiking; and some of the jewelry boxes—albeit emptied.
Cell phone records for this day showed several calls between the phones of Venegas and Antar, including at 1:28 p.m. lasting 37 seconds; at 1:45 and another at 1:46 p.m., the latter of which lasted 41 seconds; and at 1:56 p.m. lasting 34 seconds. The call at 1:56 p.m. accessed a cell tower located about a quarter-mile from the Jewelers Exchange. At 4:14 p.m., Venegas's phone made an outgoing call to Antar's phone lasting 25 seconds. This call connected to a cell tower about a quarter-mile southwest of the Jewelers Exchange.
From the foregoing, we conclude substantial evidence supports Antar's conviction on count 45 under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 46:
B.C. testified that on May 13, 2013, he was residing at a home located on Helix Street in Spring Valley; that when he arrived home after picking up his son from school, he saw "tire tracks" across his front lawn and two fruit trees knocked down; that when he went to the backyard, he saw the French doors to his bedroom open; and that from the outside, he could see the contents of his bedroom had been "strewn about." On investigation, B.C. found the gun safe inside his bedroom, which weighed about 400 pounds, had been stolen. Items inside the safe included a rifle; shotgun; a handgun; ammunition; personal documents; about 35 silver coins that both he and his children—using their birthday money—had collected; photographs; and his wife's jewelry.
About a month after the break-in, B.C. went to a sheriff's station and identified "some loose articles" that had been inside the safe. In January 2014, B.C.'s wife went to another property viewing and identified a "Batman 50th anniversary commemorative" silver coin that also had been inside the safe.
Cell phone records for that day showed a call at 11:16 a.m. involving Venegas's phone, which accessed a cell tower about a mile away from the B.C. residence. At 3:36 p.m., there was an outgoing call from Venegas's phone to Antar's phone lasting three minutes 26 seconds.
Based on this evidence, when considered in light of the record as a whole, we conclude Antar's conviction on count 46 was proper under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 47:
S.C. testified that on June 21, 2013, she was residing in a home located on Cypress Del Mar in San Diego; that at about 1:45 p.m. that afternoon, her alarm company called and informed her that a sensor on the front door had been activated; that when she arrived home about 10 minutes later, she walked into her living room and saw her laptop lying on the couch, which she stated was "impossible"; and that the glass door in the dining room was open and the blinds were blowing from the wind. In the kitchen, S.C. found a broken window, glass everywhere, and a footprint on the countertop.
In the master bedroom, S.C. found all the drawers open, with some turned upside down on the ground. Missing from the bedroom were jewelry; an iPad; watches including a Rolex taken from a desk; a rifle; antique coins; a duffle bag; and cash in different currencies. Like many others victimized in the burglary conspiracy, S.C. found a knife had been moved from her kitchen onto a table.
Cell phone records from this date showed at 1:29 p.m. Venegas's phone received an incoming call that accessed a cell tower about three-quarters of a mile west of the S.C. home. At 3:53 p.m., Venegas's phone received an incoming call that accessed a tower about a quarter-mile west of the Jewelers Exchange where, according to his coconspirators, Venegas would meet Antar and exchange the loot for money.
In light of this substantial evidence, we conclude Antar's conviction on count 47 was proper under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 48:
C.B. testified that on July 19, 2013, she lived in a home located on Overpark Road in the Carmel Valley area of San Diego; that she left her home at about 10:00 a.m. and that when she returned at about 12:00 p.m., a police car and her neighbors were waiting outside her home; that after her home was secured, she went inside and found entry into the home had been made from the back patio through a sliding glass door, which like so many other homes that had been burglarized during the conspiracy, had been smashed "into tiny little pieces"; and that, also like nearly all of the other homes burglarized during the conspiracy, the bedrooms had been "ransacked" and everything had been "dumped" on the floor. C.B. also found a kitchen knife in her walk-in closet and another knife on a bed in a guest bedroom.
C.B. testified that all of her jewelry had been dumped into a shopping bag, which she found sitting on the bedroom floor. Although none of her jewelry had been stolen, C.B. lost some Canadian coins she kept in the office.
Cell phone records for this day showed two outgoing calls from Venegas's phone at 10:14 and 10:21 a.m. Both calls accessed a cell tower about three-quarters of a mile from the C.B. residence. At 12:06 p.m., there was an incoming call from Antar's phone to Venegas's phone lasting 13 seconds.
Subsequent DNA analysis of a right shoe found down a hill behind the C.B. home showed Venegas was included as a possible major contributor and was also included as a minor contributor to a right glove that was found on a cinderblock wall near the home.
In light of such evidence, when considered in light of the whole record, we conclude Antar's conviction on count 48 was proper under a conspiracy theory. (See Covarrubias, supra, 1 Cal.5th at p. 890; Morante, supra, 20 Cal.4th at p. 433; Rodrigues, supra, 8 Cal.4th at p. 1135.)
Count 49:
As noted, the amended information alleged 157 overt acts that were committed in San Diego County in connection with the conspiracy. Based on the evidence summarized ante in connection with each of the above counts, we conclude there is more than sufficient evidence to show Antar and Venegas, along with Duron and/or Fults, "positively or tacitly came to a mutual understanding to commit" the crime of first degree residential burglary, or attempted residential burglary (see Rodrigues, supra, 8 Cal.4th at p. 1135), as evidenced through their "conduct, relationship, interests, and activities" both before and during the conspiracy (see ibid.).
This same evidence further shows that at least one such individual committed at least one (if not all) of the overt acts in furtherance of the residential burglary conspiracy. (See Rodrigues, supra, 8 Cal.4th at p. 1135; see also People v. Swain (1996) 12 Cal.4th 593, 600 [noting a conspiracy requires two or more persons agreeing to commit a crime, along with the commission in California of an overt act by at least one of these persons in furtherance of the conspiracy]; § 182, subd. (a)(1).) Thus, we conclude Antar's conviction on count 49 was supported by substantial evidence. (See Covarrubias, supra, 1 Cal.5th at p. 890.)
We note Antar did not challenge his conviction on count 50, receiving stolen property.
II
Direct Victim Restitution Award
Section 1202.4, subdivision (a)(1) in part provides "that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime." "To that end, section 1202.4 provides that, with certain exceptions not relevant here, 'in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims.' (Id., subd. (f).) The statute further provides that the court's restitution order shall, '[t]o the extent possible . . . fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct.' (Id., subd. (f)(3).) This provision, as the Courts of Appeal have uniformly held, . . . authorizes trial courts to order direct victim restitution for those losses incurred as a result of the crime of which the defendant was convicted. [Citations.]" (People v. Martinez (2017) 2 Cal.5th 1093, 1100-1101.)
Here, the record shows that the probation officer report recommended that Antar pay restitution "jointly and severally with codefendant[s] Miguel Venegas, Paulina Aguirre, Jose Montes, Ronnie Fults and Ricardo Duron"; and that the total amount of restitution was "$685,446.67," which was the same amount set forth in Venegas's probation officer's report.
However, at Antar's March 25, 2016 sentencing hearing, the trial court noted it had received "additional documents" in connection with victim restitution. After reviewing those documents, the court confirmed through the probation officer that the updated amount of victim restitution imposed under section 1202.4, subdivision (f) was $754,108.92. The court then stated it would "order restitution in that amount to be distributed as per the updated probation officer's list."
Although Antar's sentencing minute order provided that restitution to victims was "joint and several" in the amount of $754,108.92, unlike the probation officer's report this minute order did not specify who among the members of the conspiracy was liable to pay the direct victim restitution. In addition, Antar's abstract of judgment does not indicate whether victim restitution was joint and several and set victim restitution in the amount of $754,099.52, or $9.40 less than the amount stated in the minute order and pronounced by the court at his sentencing.
As noted ante, Antar in connection with this appeal filed a motion to take judicial notice of court records of Venegas, Fults, Duron, Montes, and Aguirre, which this court granted. These records show the trial court on March 30, 2016—five days after Antar's sentencing, filed sua sponte an amended abstract of judgment as it pertained to Venegas, ordering Venegas to pay victim restitution of $754,099.52. This amount is consistent with the restitution amount set for in Antar's felony abstract of judgment, but is $9.40 less than the amount set by the court during sentencing and in the sentencing minute order.
The judicially noticed records further show that Fults's abstract of judgment did not include victim restitution pursuant to section 1202.4, subdivision (f); that Duron's abstract of judgment provided victim restitution was to be imposed in an "[a]mount to be determined" per the "[v]ictims name(s) in the probation officer's report"; that Montes was to pay victim restitution on counts 4 (i.e., S.T.) and 5 (i.e., T.M.) and as to "Coin Mart" that was "joint and several" as to Aguirre only; and that Aguirre was to pay victim restitution of "2X" as per the probation officer's report, without indicating whether that award was joint and several as to any of the other conspirators.
Given this confusion, remand of this issue, and only this issue, is warranted to clarify (1) who among the members of the conspiracy is obligated to pay direct victim restitution under section 1202.4, subdivision (f), and (2) the total amount of victim restitution that is to be paid.
We likewise will remand this identical issue as it applies to codefendant Venegas in his separate appeal. We urge the trial court in connection with the remand to clarify the issue of direct victim restitution, if any, as it also applies to Duron, Fults, Montes and/or Aguirre.
III
Imposition of Assessments, a Fine, and Miscellaneous Issues
Finally, Antar contends the court incorrectly calculated the amounts of the court operations and criminal conviction assessments, and the theft case fine. The People agree.
The record shows the court ordered Antar to pay assessments of $2,080 and $1,410 for the court operations and criminal conviction assessments, respectively. However, because Antar was convicted of 46 counts per the agreement of the parties, the amount of the $40 per count court operations fee (§ 1465.8, subd. (a)(1)) should have been $1,840, not $2,080. Similarly, because the criminal conviction assessment fee is $30 per count (Gov. Code, § 70373, subd. (a)(1)), that assessment should have been $1,380 and not $1,410. In addition, the theft case fine is $10 per case, not per count. (See § 1202.5, subd. (a); see also People v. Crittle (2007) 154 Cal.App.4th 368, 371 [noting the imposition of two $10 fines "was unauthorized" because this "fine can be imposed only once '[i]n any case.' (§ 1202.5, subd. (a).)"].)
The People contend in its respondent's brief, and Antar in his reply brief agrees, that Antar's sentencing minute order and abstract of judgment should be corrected to show the concurrent term for count 22, attempted residential burglary, was the midterm of two years and not four years (see §§ 460, subd. (a), 461, subd. (a) & 664, subd. (a)) as the court incorrectly indicated at Antar's sentencing. Lastly, the People contend Antar's abstract of judgment should be amended to show counts 45 through 48 each carried four-year concurrent terms as also ordered by the court.
DISPOSITION
We remand to clarify who among the members of the conspiracy is obligated to pay direct victim restitution under section 1202.4, subdivision (f) and the amount of restitution to be paid. Moreover, in accordance with this opinion, we direct the trial court to amend Antar's sentencing minute order and abstract of judgment to (1) correct the court operations and criminal conviction assessments, and the theft case fine, and (2) show the concurrent midterm for count 22 is two and not four years.
Finally, Antar's abstract of judgment also should be corrected to show counts 45 through 48 each carried four-year concurrent terms as pronounced by the court. We note these changes to the sentencing minute order and/or abstract of judgment do not affect Antar's total sentence. Once the abstract of judgment is corrected, the trial court is further directed to forward a corrected certified copy to the Department of Corrections and Rehabilitation. In all other respects, Antar's judgment of conviction is affirmed.
BENKE, Acting P. J. I CONCUR: NARES, J. O'ROURKE, J.
I respectfully dissent.
In this case, there is overwhelming evidence that defendant Sami Antar, acting as a "fence," committed the crime of receiving stolen property that had been taken from various residences by codefendant Miguel Venegas and several other individuals. (See People v. Allen (1999) 21 Cal.4th 846, 856, fn. 10 [crime of receiving stolen property requires proof that the property was stolen, the defendant knew it was stolen, and the defendant had possession of it].) The majority concludes—based on the number and timing of cellular phone calls between Antar and Venegas; Antar's meetings with Venegas at his appointment-only business where Venegas alone with Antar exchanged the stolen property for cash, and once in front of Antar's home; photographs in Antar's computer of some items of stolen property; and Antar's failure to document the source of the stolen items; all evidence of receiving stolen property—that the evidence is additionally sufficient to support Antar's convictions for first degree burglary, attempted first degree burglary and conspiracy to commit burglary.
The evidence of the single meeting in front of Antar's home was in connection with count 26, charging first degree burglary of the J.B. home. As the majority summarize, Paulina Aguirre, one of the individuals connected with the burglaries, testified that she saw Venegas and Ricardo Duran enter a home and drive a vehicle out of its garage after placing a flat screen television into it. Aguirre then followed Venegas and Duran somewhere downtown, where the men transferred the television into Aguirre's vehicle. From there, Venegas and Duran drove the stolen vehicle, with Aguirre following, to a house that Venegas described as Antar's. At Antar's house, Aguirre waited in her car; she never entered the house, nor did she speak with Antar. She merely saw Venegas and Duran talk with Antar, and did not hear their conversation. The jury could reasonably infer from telephone and photographic evidence that Antar eventually received the stolen television, as well as stereo equipment from the stolen J.B. car. But all of this evidence supports a conviction for receiving stolen property; it is not sufficient to support a conviction for first degree burglary or conspiracy to commit burglary.
I disagree. Certainly a conspiracy may be inferred from the conduct, relationship, interests and activities of the alleged participants before and during a conspiracy. (People v. Thompson (2016) 1 Cal.5th 1043, 1111.) But mere suspicion or association is not enough. (People v. Powers-Monachello (2010) 189 Cal.App.4th 400, 418, 419 [the existence of a conspiracy may not be proven by mere suspicion or association, and "simply knowing that a person's products or services are being used for a criminal purpose is insufficient"].) The record here is silent as to the content of the phone calls between Antar and Venegas or their discussions. There is no direct or circumstantial evidence suggesting that Antar knew how the property was stolen. On this record, no inference can reasonably be drawn that Antar either positively or tacitly came to a mutual understanding with Venegas to commit or attempt to commit the underlying residential burglaries. (Ibid.; People v. Rodriques (1994) 8 Cal.4th 1060, 1135.)
The majority cites People v. Kefry (1958) 166 Cal.App.2d 179 for the proposition that a defendant who does not actually commit burglary may still be convicted of burglary on evidence of possession of stolen property plus slight corroborating evidence, including evidence of acts, conduct or declarations of the accused tending to show his guilt. (Maj. opn. ante, at p. 9.) In Kefry, the appellate court upheld the defendant's convictions for conspiracy, burglary, and receiving stolen property, though there was no evidence he actually entered the gas stations from which items were taken. (Id. at pp. 183-184, 193.) The defendant had offered to sell spark plugs well below market price to a gas station operator days before the station was burglarized by other individuals, then was later seen backing his car into one of the individual's driveway and carrying items from that person's garage into his vehicle. (Id. at pp. 183-184.) When police approached the defendant, he was found with spark plugs. (Id. at p. 184.) He gave the officers various explanations as to why he had the property and also said he had no need for the items, which would "ruin" him. (Id. at pp. 184-185.) The Court of Appeal pointed out there was evidence beyond mere association to connect the defendant to the burglaries even before they were committed by the others, namely, the fact he took only stolen items from the individual's garage, and his earlier offer to sell spark plugs below market price, which supported an inference that he was looking for a place to dispose of possible stolen items or attempting to discover whether the owner had such items on hand to be taken later. (Id. at pp. 186-187.) It further held there was corroborating evidence to sustain the defendant's convictions for burglary. (Id. at p. 188.) The court pointed out that possession alone was not itself sufficient, but corroborating evidence can consist of a defendant's false explanation of possession to a buyer of the property, use of a fictitious name in selling the property, and selling the property at much less than its actual value. (Id. at p. 188, citing People v. Citrino (1956) 46 Cal.2d 284, 288 and People v. Taylor (1935) 4 Cal.App.2d 214, 217-218 [corroborating evidence consisted of false statements concerning how the defendant explained the manner in which he came into possession of the stolen property], disapproved on other grounds in People v. Allen, supra, 21 Cal.4th at p. 866, fn. 21.) In Kefry, the court stated that the jury there could infer the defendant's explanation of possession was false, thus supporting his burglary convictions. (Kefry, at p. 189.)
Here, there is no such corroborating evidence to convict Antar of burglary. Absent any statement by Antar or other corroborating evidence, his burglary convictions cannot stand. (Accord, In re D.M.G. (1981) 120 Cal.App.3d 218, 229-230 [evidence was insufficient to support juvenile's burglary conviction where evidence was only that she had a stolen gun in her possession; the People did "not point to any corroborating evidence other than the failure to explain and possession of the gun" and there was a "total absence of any physical evidence, witnesses, statements by the minor or evidence of a sale of the stolen property at a reduced price, etc., which could sustain the trial court's true finding on the charge"].) I see no difference between this case and any standard receiving stolen property case. Under the majority's approach regarding the evidence in this case, any defendant charged with and convicted of receiving stolen property can also be charged with and convicted of the underlying theft and conspiracy to commit the underlying theft, regardless of the defendant's knowledge of how the property was stolen, whether by burglary or armed robbery, or any other indication—other than possession—the defendant was connected with the underlying crimes.
For this reason, I would reverse Antar's convictions for first degree burglary in counts 1-13, 15-21, and 23-48, attempted first degree burglary in counts 14 and 22, and conspiracy in count 49.
O'ROURKE, J.