Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM031294
HULL, Acting P. J.Defendant was convicted by a jury of two counts of burglary (Pen. Code, § 459), one in the first degree and one in the second. (Undesignated section references that follow are to the Penal Code.) The jury also found a non-accomplice had been present during the commission of the first degree burglary, making it a violent felony for purposes of calculating conduct credits (§§ 667.5, subd. (c)(21), 2933.1), and the trial court found defendant served a prior term in state prison (§ 667.5, subd. (b)). Defendant was sentenced to an aggregate state prison term of five years, eight months.
Defendant appeals, contending the evidence is insufficient to support the violent felony finding and the trial court provided inadequate instructions on that issue. Defendant further contends the court miscalculated his conduct credits. We correct the award of credits and affirm the judgment.
Facts and Proceedings
During the early evening hours of May 27, 2009, K.S. returned to his parent’s home on Forbestown Road in Butte County and saw defendant standing in front of a shed near the back of the property. The shed door was open and K.S. could see items stacked on a freezer in front of the shed. When K.S. left the property earlier that day, the items on the freezer had been inside the shed and the shed door was closed and locked.
K.S. approached defendant and asked what he was doing there. Defendant was holding a Navy medallion that had been inside the shed. He said his mother or grandmother owned the property and, therefore, everything on the property belonged to him. K.S. told defendant to put everything down and get off the property.
Just as defendant was departing, K.S.’s parents arrived and K.S. told his mother, S.S., what had occurred. S.S. walked out to the road looking for defendant, and defendant walked up to her. Defendant told S.S. he had paperwork showing his right to the property. S.S asked defendant to produce it, but defendant said he did not have it with him. S.S. asked defendant to leave. Defendant stood there for a while but eventually departed.
After defendant left, S.S. and K.S. searched the shed and saw that several boxes inside had been opened and searched. The lock to the shed door appeared to have been hit with a hammer.
Meanwhile, at another home on Forbestown Road approximately 350 to 400 meters from the home of S.S., C.B. and her family ate dinner and went to a church revival. They returned home around 8:45 or 9:00 p.m. and saw that all the lights in the house were on.
C.B. entered the house after her children and walked through the kitchen and around a corner into a hallway, where she encountered defendant emerging from the master bedroom. Defendant asked C.B. what she was doing there. C.B. responded that she lived there and asked defendant what he was doing there. Defendant told C.B. she was mistaken and that this was his sister’s house.
At that point, C.B.’s husband, N.B., came into the hallway and he and defendant walked into the living room to discuss the matter further. N.B. asked defendant the location of his sister’s house, and defendant said it was a big redwood house on the hill. N.B. did not know of any such house in the neighborhood. Although defendant identified himself to N.B., his identity seemed to change more than once as time went on. N.B. asked the name of defendant’s sister, and he said it was Sonia. Later, defendant said his sister was Sonia Sotomayor or something like that. Defendant had a satchel of some sort and offered to allow N.B. to look through it. N.B. declined. N.B. eventually called 9-1-1 to summon the police.
While N.B. was questioning defendant, C.B. went into her bedroom and noticed items out of place. There were clothes piled on the bed and a digital camera lying in a crib that had not been in the crib when the family left for the revival. Doors and drawers of furniture were open that had been closed and a leather jacket that had been in a closet was on a chair. Underneath the clothes on the bed, C.B. found jewelry that did not belong to her family.
C.B. walked into the living room, where she observed doors and drawers open that had been closed earlier. C.B. asked defendant “if he waited for his sister by going through [their] things.” Defendant responded that “[s]he wouldn’t mind.”
After N.B. called the police, defendant said he was embarrassed and sorry. However, he also said he “wasn’t going to stick around for the police to hassle him.” Defendant grabbed his satchel and departed. In all, defendant remained in the house talking with C.B. and N.B. for about half an hour.
C.B. found only a couple of items missing from the house, a Nintendo DS console and a ring, both of which could have fit in defendant’s satchel. However, C.B. could not be sure those items had not simply been misplaced by her family.
After the police arrived, they took the jewelry found on C.B.’s bed over to the home of S.S., who identified it as having come from a box in the shed.
Defendant was charged with two counts of burglary, one in the first degree and one in the second. In connection with the first degree burglary, defendant was also charged with having committed the offense while someone other than an accomplice was present in the home, within the meaning of section 667.5, subdivision (c). Finally, defendant was charged with having served a prior prison term.
Defendant was convicted as charged. In a bifurcated proceeding, the court found true the prior prison term allegation. Defendant was sentenced on the first degree burglary to the middle term of four years and on the second degree burglary to a consecutive one-third middle term of eight months. He also received a one-year enhancement for the prior prison term, for an aggregate sentence of five years, eight months. Conduct credits were limited to 15 percent pursuant to section 2933.1.
Discussion
I
Sufficiency of the Evidence
The jury found the first degree burglary was a violent felony within the meaning of section 667.5, subdivision (c), which includes “[a]ny burglary of the first degree... wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.” (§ 667.5, subd. (c)(21).) In light of this finding, the trial court limited defendant’s accrual of custody credits to 15 percent. (§ 2933.1.)
Defendant contends the evidence was insufficient to support the jury’s finding on the section 667.5, subdivision (c)(21) allegation. He argues a non-accomplice is “present in the residence during the commission of the burglary, ” for purposes of that subdivision, only if the defendant’s “(1) entry occurs when a non-accomplice is in the residence or (2) larcenous or felonious conduct inside the residence persists after the arrival of a non-accomplice.” According to defendant, the evidence shows there was nobody present in the home when he entered and he desisted from his larcenous activity once the family returned home.
We do not share defendant’s view of the evidence. In assessing the sufficiency of the evidence supporting a conviction, we view the evidence in the light most favorable to the prosecution and determine if a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) “‘The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.’” (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting from People v. Reilly (1970) 3 Cal.3d 421, 425.) Reversal on the basis of insufficient evidence is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
It is undisputed that no member of C.B.’s family was present in the home when defendant entered. Thus, the question is whether, after the family came home, defendant persisted in his larcenous activities. Defendant argues the evidence is undisputed that he did not.
“The plain meaning of ‘present in the residence’ is that a person, other than the burglar or an accomplice, has crossed the threshold or otherwise passed within the outer walls of the house, apartment, or other dwelling place being burglarized.” (People v. Singleton (2007) 155 Cal.App.4th 1332, 1337.) C.B. testified that after the family returned home, the children entered the residence first. They were followed by C.B., who walked through the laundry room, through the kitchen, and around a corner before encountering defendant coming out of her bedroom. Even if we assume defendant desisted in his larcenous activities once he encountered C.B., there is no direct evidence as to what defendant was doing between the time the children entered the residence and when C.B. encountered him in the hallway.
In assessing the sufficiency of the evidence, we consider both the evidence presented as well as all reasonable inferences therefrom. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.) In light of significant evidence suggesting defendant had been searching through drawers and closets in the residence and laying out items he might later take with him, the jury could reasonably conclude such activities continued until defendant was interrupted by C.B. in the hallway. There is nothing in the evidence to suggest defendant was aware of other people’s presence before then. Hence, it is reasonable to infer from the evidence that defendant continued his larcenous activities after the children crossed the threshold of the residence.
We conclude substantial evidence supports the true finding that a non-accomplice was present in the residence during the commission of the burglary.
II
Instructional Error
On the presence of a non-accomplice during the commission of the first degree burglary, the court instructed the jury as follows:
“If you find the defendant guilty of the crime charged in Count 1, burglary, and further that the building occupied by the [B.] family was an inhabited dwelling, you must then decide whether the People have proved the additional allegation that there was a person present in the [B.] residence. [¶]... [¶]
“The plain meaning of, quote, ‘person present, ’ end quote, in the residence means that a person other than the burglar or an accomplice has crossed the threshold or otherwise passed within the outer walls of the house or other dwelling place being burglarized at the time that the house or residence or dwelling is in the process of being burglarized.
“The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find the allegation has not been proven.”
Defendant contends the foregoing instruction was incomplete, as it failed to define the temporal contours of the burglary. In particular, defendant argues, the phrase “at the time that the house or residence or dwelling is in the process of being burglarized” did not indicate when this process ends. Defendant further argues the court was required to inform the jury the burglary ends when the burglar completes the act of gaining entry into the residence.
The People contend defendant’s claim should be rejected, because defendant was not entitled to a jury determination on the foregoing issue. The People point out that the factual determination of whether a non-accomplice was present during the burglary impacts only the award of conduct credits and does not increase the penalty imposed within the meaning of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435].
The People’s argument misses the point. Defendant may not have been entitled to a jury determination on the issue of the presence of a non-accomplice during the burglary. However, he was entitled to a factual determination by somebody on the issue. In this instance, the trial court chose to leave the issue to the jury. In so doing, the court was required to make sure the jury used the correct legal standard.
Nevertheless, defendant is incorrect that a burglary ends upon the burglar gaining entry into the residence. Although such entry completes the burglary for purposes of determining whether the defendant may be convicted of the offense, it does not mean everything done thereafter is not also part of the burglary. In People v. Alvarado (2001) 87 Cal.App.4th 178, the court interpreted the phrase “during the commission of a burglary, ” as used in section 667.61, to include “the period of time that a burglar remains on the premises after entry and extends until the burglar has reached a place of temporary safety.” (Id. at p. 183.) This is consistent with People v. Bodely (1995) 32 Cal.App.4th 311, in which the court affirmed a felony murder conviction where the killing occurred during the defendant’s flight from a store he had just burglarized. The court indicated that, for purposes of felony murder, a burglary continues during the burglar's escape until he or she reaches a place of temporary safety. (Id. at p. 314.)
As for the court’s failure to explain to the jury when a burglary ends, even if this was error, defendant was not harmed thereby. “Misdescription of an element of a charged offense is subject to harmless error analysis and does not require reversal if the misdescription was harmless beyond a reasonable doubt.” (People v. Hagen (1998) 19 Cal.4th 652, 670.)
In this instance, the jury was informed a burglary requires only that the defendant entered a building and that, when he did so, he intended to commit theft. On this instruction, the jury was left with the impression that a burglary is complete upon entry with the requisite intent. Section 667.5, subdivision (c)(21), defines as a violent felony any burglary where it is proven a non-accomplice was present in the residence “during the commission of the burglary.” The instruction given in this case elaborated on this definition by requiring that a non-accomplice was present while the dwelling “is in the process of being burglarized.”
The trial court’s elaboration added nothing to the statutory phrase. Nevertheless, since the jury was instructed that a non-accomplice must be present while the residence is being burglarized and was told a burglary occurs upon entry with the requisite intent, defendant could not possibly have been harmed by a failure to explain further that the burglary continues until the burglar reaches a place of temporary safety.
III
Actual Credits Earned
Defendant contends the trial court incorrectly calculated his actual days of confinement in county jail prior to sentencing. Defendant was arrested on July 1, 2009, and sentenced on December 9, 2009. As recommended in the probation report, the court awarded defendant 151 days of actual presentence credit and 22 days of conduct credit, for a total of 173 days. Defendant asserts the actual number of days between July 1, 2009, and December 9, 2009, inclusive, is 162 days. Therefore, he argues, he is entitled to 162 days of actual credit and 24 days of conduct credit, for a total of 186 days.
The People contend defendant may not raise this issue for the first time on appeal. Section 1237.1 reads: “No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.”
We disagree that defendant may not raise this issue for the first time on appeal. In People v. Acosta (1996) 48 Cal.App.4th 411, the Court of Appeal explained that, given the language and legislative history of section 1237.1, the Legislature intended this limitation on appeal to apply only where the only issue raised on appeal is the miscalculation of credits. (Id. at p. 427.) But where, as here, other issues are raised on appeal, considerations of judicial economy do not require that the defendant first seek relief from the trial court.
Defendant’s calculation of the total number of days between July 1, 2009, and December 9, 2009, is correct. There is nothing in the record to indicate defendant was ever out of jail during that period. Therefore, he is entitled to an increased award of credits.
Disposition
The judgment is modified to award defendant 186 days of presentence custody credit, 162 days of actual credit and 24 days of conduct credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: ROBIE, J. HOCH, J.