People v. Jarrell

THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALLEN JARRELL, SR. et al., Defendants and Appellants.

C081846

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Amador)

June 30, 2020

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. Nos. 15CR2334001, 15CR2334005, 15CR2334006)

OPINION ON REHEARING

Defendants Robert Allen Jarrell, Sr., Henry Ralph Ramirez, Jr., and Shelly Marie Strickland appeal following convictions on various offenses arising from two residential burglaries. They assert an assortment of contentions: erroneous denial of a suppression motion, erroneous grant of a motion to consolidate the burglary trials, errors involving the establishment and instruction of a defense of consent, violation of the "one larceny" rule, and other procedural irregularities.

We reverse certain theft counts under the "one larceny rule," stay sentences for possessing firearms and ammunition, and strike prison priors. In all other respects, we affirm the judgment.

FACTS AND PROCEEDINGS

The two burglaries were consolidated and tried by a single jury against the three appellants. Two other men, Michael Allen Gaunt II and Michael Jay Hix, were charged but accepted plea bargains.

The Jackson burglary¹

On the morning of June 2, 2014, Kristie S. left her home in Jackson around 7:45 a.m. to give her friend, defendant Strickland, a ride to an appointment. Kristie's husband, Scott S., locked the home's doors and left for work shortly before 10:00 a.m. Kristie returned home with Strickland around 11:20 a.m. and found the side door to the kitchen wide open.

Kristie jumped out of her car and ran into the house. It was ransacked. Drawers were open, things were strewn about, and a shelf had been torn off the wall. The master bedroom was "thrashed," with drawers ripped out and items thrown on the bed and broken on the floor. Missing items included two safes (a gun safe and an ammunition safe), six guns, a couple of bows, and a camera. One of the stolen firearms was a .30 M1 carbine. The value of the missing items totaled approximately $76,000.

There was no sign of forced entry. A hide-a-key was missing from its place in the backyard. Strickland was one of three people outside the family who knew about the hide-a-key. She and Kristie had used the key the weekend before the burglary to move some mattresses out of Kristie's garage. While Kristie drove the truck that day after dropping off the mattresses, the key was rolling around the truck's console. Stricklandsaid she would throw the key "in the purse" and they would put it away when they got home. Both women's purses were at Strickland's feet. Kristie did not see where Strickland threw the key.

On the day of the burglary, Kristie's neighbor saw a dark Dodge Durango SUV back into Scott and Kristie's carport shortly after Scott left for work. The driver, later identified as defendant Jarrell, got out of the vehicle and was still there when the neighbor left. Detectives from the sheriff's department viewed different neighbors' surveillance videos. They showed a black Durango, which was determined to belong to Jarrell, going through the neighborhood around the time of the burglary.

The day after the burglary, deputies received a 911 call of shots being fired near a Drytown motel. Deputies contacted Jarrell at a residence across from the motel. He initially denied any knowledge of the shooting. He said he was the only person home and had been home for about 10 minutes. Moments later, Jarrell said he had other friends at the house, and he yelled for another person to come out. Nicholas Carreira came to the door. Carreira also denied any knowledge of shots being fired, but then said there had been others on the property who had been shooting.

Deputies conducted an exterior sweep of the residence and found .22-caliber and .30 carbine shell casings. They then entered the home to conduct a protective sweep. Inside, they saw on the floor a green safe and a brown safe matching the descriptions of the safes stolen from Scott and Kristie's home. The black Durango in front of the Drytown residence matched the one seen in surveillance videos outside the burglarized home. In addition to Jarrell and Carreira, deputies found former defendant Michael Gaunt hiding underneath the back side of the house. They also saw Stacy Dalton and another woman at the residence.

Deputies executed a search warrant at the house and found numerous stolen items. Many of the items belonged to Scott and Kristie, including the two safes, hunting equipment, six firearms, and two compound bows. Deputies also found a magnetic hide-a-key holder. The stolen guns were found in a room where deputies also found a DMV renewal form in Jarrell's name.

At trial, Gaunt stated that on the day of the Jackson burglary, Jarrell, Carreira, defendant Ramirez, and former defendant Hix left in the Durango while he stayed home to sleep. The men left wearing black clothing, and they took some bags and tools with them. About two hours after they left, they awoke Gaunt and told him to get out of his room while they brought property into the house. They brought some of the property into Gaunt's room as well as Ramirez's and Carriera's rooms. Gaunt saw the safes brought into his room and heard Jarrell, Ramirez, and Hix banging on them. Eventually, Jarrell asked Gaunt to dig a hole, so they could bury things in it.

Dalton stated at trial that she was at Jarrell's home the day of the burglary. Jarrell woke her up that morning and told her he was leaving for a few hours. Before Jarrell left, Dalton heard him tell one of his friends to remove a license plate from one vehicle and put it onto the black vehicle. Jarrell took the black Durango when he left that morning.

Dalton recalled that Strickland was at Jarrell's residence in the days before the burglary. After Strickland left, Jarrell held up a key and said, " 'It is not breaking and entering if you have a key, and if it's put back in time.' "

Some days after the burglary, Kristie and Strickland were driving past a house in Drytown when Strickland began crying. Strickland said she was sorry and were it not for her, "this never would have happened." Kristie had taken Strickland to that house at least three times before the burglary. She had taken Strickland there the day they had used the hide-a-key and moved mattresses. By this time when Strickland had started crying, Kristie knew that the house had been searched and items taken from her home in the burglary had been found there. Later, when speaking with a detective, Kristie stated Strickland had gone on to tell her in effect that, "I know these people, so I feel responsible."

The Pioneer burglary²

At the time of the Jackson burglary, Richard M. lived at Jarrell's home in Drytown with Jarrell, Ramirez, Gaunt, and Carreira. On the day the search warrant was executed on that property, Richard and Ramirez had a fight.

In April 2015, approximately 10 months after the Jackson burglary, Richard lived in a home in Pioneer with a woman named Teresa C. She had been squatting there. He was helping her prepare to move out, and in return, she allowed him to stay there. He stored his belongings in a large shed on the property. He placed a keyed lock on the shed's door. He was the only person with a key. No one had permission to enter the shed.

On April 5, 2015, Richard's neighbor, Kayla Cardwell, heard a truck pull up next door. She heard people yelling for the person living there, followed by banging on walls and breaking glass. She saw men walking around the main house with flashlights. She called the police.

While Cardwell was on the phone with dispatch, she saw a white car pull in and out of her driveway and park down the road. Three men who had been at the main house then went over to a shed, and Cardwell heard more breaking glass.

Once police arrived, the three men split up. One of them appeared to Cardwell to be looking for a place to hide on her property. She yelled at the man, and he came over to her. It was Ramirez. Cardwell told Ramirez to turn around and put his hands on her car, but he refused and walked away. Cardwell yelled Ramirez's description to an officer and followed Ramirez down the driveway to ensure he and the officer made contact.

Upon arriving on the scene, Deputy Ryan Davis saw Jarrell approaching his patrol car. Jarrell said he was there "to collect a debt from a previous tenant." Deputy Davisannounced his presence, and then Ramirez and a man later identified as Glen Mohr made their way to him. Mohr said he was there to see Teresa. Ramirez said he was just there with Jarrell. Deputy Davis took Ramirez into custody after learning Ramirez had outstanding warrants.

Jarrell showed Deputy Davis a text message he had received from Teresa. In the message, Teresa stated she was in possession of property belonging to Richard, that Richard was a thief, and the property she possessed was free for the taking. However, none of the messages Jarrell showed Deputy Davis suggested Jarrell had a right to Richard's belongings. Richard later told Deputy Davis that both he and Teresa had property inside a shed at the residence and the two were disputing over some of the property.

Deputy Jeffrey Bellotti and another officer arrived and conducted a protective sweep of the property. Deputy Bellotti saw a storage shed with a broken front window. The shed's locking mechanism was broken and the door was open. Inside the shed, a locked toolbox belonging to Richard had been opened.

Around the property's fence line, Deputy Bellotti found a brown paper bag that contained gloves and paper towels. He also located two surveillance cameras on the ground nearby. Richard told Deputy...