Opinion
C079963
12-07-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID WAYNE SCARBROUGH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CM042310)
Defendant David Wayne Scarbrough was caught on video trying to break into a safe at his girlfriend's workplace. A jury convicted him of burglary (Pen. Code, § 459), and the court found true enhancement allegations for one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and two prior prison terms (§ 667.5, subd. (b)). He was sentenced to six years in state prison.
Undesignated statutory references are to the Penal Code.
The jury found defendant not guilty of two other charges, receipt of stolen property and carrying a dirk or dagger, based on a separate incident.
Defendant contends on appeal that insufficient evidence supports his burglary conviction, and that the trial court erred in enhancing his sentence based on the two prior prison terms. For the burglary charge, he argues that the area where the safe was located did not constitute a "room" within the meaning of the burglary statute, and that the prosecution's evidence was "muddled and inconsistent." For the prison priors, he contends that a prior enhancement imposed for his 2006 drug conviction (Health & Saf. Code, § 11377, subd. (a)) was improper since that conviction had already been reduced to a misdemeanor under Proposition 47 when the court imposed the enhancement, and that a prior enhancement imposed for his 2001 child endangerment conviction (§ 273 a, subd. (a)) "washed out" under section 667.5, subdivision (b) once his 2006 felony drug conviction was reduced to a misdemeanor.
We conclude sufficient evidence supports the burglary conviction. We also conclude that while the court erred in imposing a prior prison term enhancement based on the 2006 drug conviction because at the time the court imposed the enhancement that conviction was no longer a felony, the prior prison term enhancement based on the 2001 child endangerment felony conviction was proper because the "washout rule" does not apply to that conviction. A completed prison term previously served for a felony conviction that has been reclassified as a misdemeanor under Proposition 47 still qualifies as "prison custody" within the meaning of section 667.5, subdivision (b). We shall strike the prior prison term enhancement based on the 2006 drug conviction, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2012, Mary Allinger worked for Brusie's Funeral Home in Chico. Mark Brusie, the owner, hired her as an office clerk who was primarily responsible for filing death certificates.
Defendant was Allinger's boyfriend. He often visited her at the funeral home during working hours to bring her lunch. Brusie spoke with Allinger about defendant's frequent visits, which he discouraged because the funeral home dealt with sensitive matters.
The funeral parlor was a two-story building; the upstairs portion used to serve as a residence but had since been converted to work space for the employees. Brusie kept a safe on the second floor in an area directly outside of several offices. Photographic and video evidence admitted at trial showed the area enclosed by several walls with various doors leading into other rooms such as Brusie's office, a closet, the bookkeeper's office, and a large room with desks for funeral directors.
The safe was equipped with a "drop drawer," similar to a mailbox where one puts the mail in the drawer, closes it, and the mail drops through a slot in the back. The lock for the safe's main door was controlled by a digital combination. Brusie was the only person who knew the combination. The safe was not bolted down and had four bolt holes on the bottom.
Around July 2013, Brusie discovered that one of the cash payments deposited in the safe was $100 short. He therefore installed a motion-activated video camera in the upstairs area where the safe was located. The camera pointed towards the safe.
On August 1, 2013, at approximately 9:38 p.m., the video camera recorded defendant and Allinger enter the second floor area of the funeral home where the safe was located. Defendant was wearing latex gloves. The camera captured defendant moving the safe away from the wall, laying it on its back, and peering into the bolt holes on the bottom of the safe. Defendant wrapped a piece of tape around a long metal wire and then "fished" the tool up through one of the bolt holes. After unsuccessfully retrieving anything from the safe, defendant left and returned a short time later with a flashlight, which he propped in the safe's drawer to shine light inside. Defendant inserted his makeshift tool again, but did not obtain anything from the safe. After standing the safe up and returning it to its original location, defendant tried to enter a code on the digital keypad to open the safe. That too was unsuccessful. Before leaving for the night, Allinger punched the keypad on the safe as well.
When Brusie returned to work and reviewed the video, he called police. Officers responded to the funeral home to question Allinger. Defendant happened to arrive around the same time to bring Allinger her lunch. He left the premises after seeing Allinger with police. Allinger was eventually arrested and charged with felony burglary. She later pleaded no contest to a misdemeanor based on the advice of her counsel. Defendant was apprehended later during an unrelated incident involving a truck that had been reported stolen.
At trial, Allinger testified on defendant's behalf. She claimed that she and defendant had gone to the funeral home after hours so she could finish some work, and also so they could take plants home since the landscaping at the business was being redone and employees were permitted to take the plants that were being replaced. While defendant was outside working on removing the plants, she was inside the funeral home finishing up tasks for a service the next day. She gave defendant latex gloves before he started working to remove the plants because he was highly allergic to dirt. She testified that she noticed her office key was missing, and she went outside and told defendant. She thought she might have accidentally dropped it in the safe when she was making a deposit earlier in the day. She asked defendant to try to retrieve the missing key from the safe. According to Allinger, she later found her key outside on the sidewalk where defendant had been removing the plants.
Defendant also testified on his own behalf. Like Allinger, he claimed that he was not trying to steal anything from the safe, but instead was looking for Allinger's lost key. He wore the latex gloves because he did not want anyone to know he had tried to manipulate the safe; he knew his actions did not look good.
The jury found defendant guilty of burglary, and the trial court subsequently found true the allegations that defendant had a prior strike conviction and had served two prior prison terms. The court denied defendant's Romero motion to strike his strike prior, and sentenced him to the middle term of two years, doubled to four years for the strike prior, plus one year each for the prior prison term allegations. Defendant's total aggregate sentence was six years in state prison. Defendant timely appealed.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
1.0 Burglary Conviction
Defendant contends insufficient evidence supports his burglary conviction because the area where the safe was located did not constitute a "room" within the meaning of the burglary statute. He also argues that the evidence was too "muddled and inconsistent" to prove the burglary charge. We disagree with defendant's view of the evidence and conclude substantial evidence supports the burglary conviction.
When determining whether there is substantial evidence to support a conviction, we view the record in the light most favorable to the People, resolving all conflicts in the evidence and drawing all reasonable inferences in support of the conviction. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Campbell (1994) 25 Cal.App.4th 402, 408; People v. Small (1988) 205 Cal.App.3d 319, 325 ["The substantial evidence rule is generous to the respondent on appeal"].) " 'We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant guilty on the theory presented.' " (Campbell, supra, 25 Cal.App.4th at p. 408; People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 459 provides in relevant part that "[e]very person who enters any . . . room . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." " 'The intent [to steal the personal property of another] need not be in the mind of the [defendant] at the time of the initial entry into the structure, if [he or she] subsequently forms the intent and enters a room within the structure.' " (People v. McCormack (1991) 234 Cal.App.3d 253, 255.) The purpose of section 459 is twofold: "to protect against the increased risk to personal safety that attends the commission of a felony inside the enumerated locations, and to prevent the invasion of an owner's or occupant's possessory interest in a space against 'a person who has no right to be in the building.' " (People v. Garcia (2016) 62 Cal.4th 1116, 1125.)
The question here is whether the area where the safe was located constitutes a "room" within the meaning of section 459. We believe that it does.
"[T]he use of the word, 'room,' in the burglary statute was intended to broaden the definition of burglary, not constrict it." (People v. Elsey (2000) 81 Cal.App.4th 948, 954 [entry into six rooms in a single school constitutes six separate burglaries].) The term "room" has been defined as " 'a part of the inside of a building, shelter or dwelling usually set off by a partition.' " (People v. Mackabee (1989) 214 Cal.App.3d 1250, 1257 (Mackabee).) A ticket office in a public railway station enclosed by a partition that did not touch the ceiling (People v. Young (1884) 65 Cal. 225, 226), an office space in a lobby of a public building, separated from the lobby by a waist-high counter with a swinging gate (Mackabee, at p. 1258), a three and one-half by four-foot closet inside the foyer of a home (In re M.A. (2012) 209 Cal.App.4th 317, 323), and an enclosed storage cage within a liquor store (People v. Garcia (1963) 214 Cal.App.2d 681, 683), were all found to constitute rooms for purposes of the burglary statute.
Here, the safe was located in the upstairs private area of a funeral home. Photographic evidence in the record shows that the area functioned largely as an anteroom to several employee offices. (Merriam-Webster Unabridged Dict. Online (2018) <https://www.merriam-webster.com/dictionary/anteroom> [as of Dec. 7, 2018], archived at: <https://perma.cc/6CZY-T625> [defining "anteroom" as "a small outer room that leads to another room and that is often used as a waiting room"].) It appears the area is surrounded on all sides by walls that contain doors leading to other rooms. There is nothing in the record that shows the public was allowed into the private business area where the safe was located. Like the "office area" separated by a short counter space from the public lobby in Mackabee, the upstairs private anteroom area in the funeral home where the safe was located constitutes a part of the inside of a building set off by a partition. (Mackabee, supra, 214 Cal.App.3d at pp. 1254, 1257.)
The fact that the prosecutor sometimes referred to the area as a "hallway" rather than a "room" is not decisive. The prosecutor also referred to the area as a "room." For example, in the People's response to defendant's motion in limine, the prosecutor stated, "[b]ecause of the losses experienced by [Brusie] and Brusie Funeral Home in Chico, Mr. Brusie installed a video camera that records whatever occurs in the room where the business'[s] safe is kept." When cross-examining Allinger, the prosecutor asked Allinger whether she had walked through the "room" where the safe was located as seen on the video; she agreed she had.
Nor is defendant's argument that the evidence was "too muddled" persuasive. Defendant misapprehends our limited review of insufficiency of the evidence challenges. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
The fact that Brusie could not recall the exact day he reviewed the video does not change what the video showed. The surveillance camera video was introduced during trial, allowing the jury to actually see defendant's actions with the safe. Defendant acknowledged that his actions on the video were incriminating.
Defendant's testimony, moreover, was often conflicted. Although he claimed he knew there was a video camera pointed at the safe, he said he wore gloves while touching the safe because he did not want his fingerprints on it and he carefully replaced the safe in its original position because he did not want anyone to know that he had "messed" with the safe. While defendant claimed that he had been removing plants from the landscaping outside for about an hour wearing gloves that Allinger had given him, no dirt can be seen on the gloves he was wearing in the video. Based on the video, a reasonable jury could conclude that defendant intended to steal items from the safe rather than retrieve Allinger's supposedly "lost" key. The jury was free to judge the credibility of defendant and Allinger, and to reject their testimony as not believable. The fact that the jury found the testimony incredulous in light of the video evidence capturing the event does not mean insufficient evidence supports the jury's burglary verdict.
2.0 Prior Prison Term Enhancements
Defendant contends that both his prior prison term enhancements under section 667.5, subdivision (b) must be stricken. According to defendant, the enhancement based on his 2006 drug conviction should be stricken because that felony conviction was reduced to a misdemeanor under Proposition 47 before the enhancement was adjudicated. He also argues that the enhancement based on his 2001 child endangerment felony conviction should be stricken under section 667.5, subdivision (b)'s "washout" rule. We agree that the enhancement based on the 2006 conviction is improper, but find that the enhancement based on the 2001 conviction is valid since the washout rule does not apply to that conviction because defendant did not remain free from prison custody for five years.
In this case, defendant's two prior prison term enhancements were based on a 2001 conviction for felony child endangerment (§ 273a, subd. (a)) and a 2006 conviction for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Before the court adjudicated the prior prison term enhancements, defendant successfully petitioned another court to redesignate the 2006 conviction to a misdemeanor under Proposition 47. After the redesignation, defendant argued that the court could no longer impose a prior prison term enhancement based on that offense. The court disagreed, finding that the prior prison term enhancement based on the 2006 drug offense was true. It imposed a one-year term for the enhancement. The court erred.
Section 667.5 provides in relevant part: "Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶] . . . [¶] (b) Except where subdivision (a) [concerning violent felonies] applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony; provided that no additional term shall be imposed under this subdivision for any prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended." (§ 667.5, subd. (b).) The elements required for the imposition of a section 667.5, subdivision (b) prior prison term enhancement require proof that the defendant: " '(1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.' " (People v. Buycks (2018) 5 Cal.5th 857, 889 (Buycks).)
Proposition 47, in turn, provides that persons who have completed felony sentences for certain offenses may apply to have their convictions "designated as misdemeanors." (§ 1170.18, subd. (f).) In such cases, the convictions "shall be considered a misdemeanor for all purposes." (§ 1170.18, subd. (k).)
In People v. Kindall (2016) 6 Cal.App.5th 1199, 1201, 1203-1204 (Kindall), we held that where a prior felony conviction is reduced to a misdemeanor under Proposition 47 before a prior prison term allegation based on that conviction is adjudicated, the misdemeanor conviction cannot serve as the basis for a prior prison term enhancement under section 667.5, subdivision (b). That principle applies to defendant's 2006 drug conviction. At the time the court adjudicated the prison prior allegations, that conviction was no longer a felony. Thus, one of the necessary elements of the enhancement was missing: "if the 'felony conviction that is . . . designated as a misdemeanor' conviction becomes 'a misdemeanor for all purposes,' then it can no longer be said that the defendant 'was previously convicted of a felony' [citations], which is a necessary element for imposing the section 667.5, subdivision (b) enhancement" based on that conviction. (Buycks, supra, 5 Cal.5th at p. 889.) We shall therefore strike the one-year prior prison term enhancement based on defendant's 2006 drug conviction.
The same cannot be said for defendant's 2001 felony child endangerment conviction, however. While defendant argues that the "washout" exception in section 667.5, subdivision (b) applies now that the 2006 conviction is deemed a misdemeanor for all purposes, the plain language of the washout provision provides otherwise.
"The last phrase [in section 667.5, subdivision (b)] is commonly referred to as the 'washout rule' where a prior felony conviction and prison term can be 'washed out' or nullified for the purposes of section 667.5." (People v. Fielder (2004) 114 Cal.App.4th 1221, 1229; Buycks, supra, 5 Cal.5th at p. 889.) "According to the 'washout' rule, if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply." (Fielder, at p. 1229; Buycks, at p. 889.) "Both prongs of the rule, lack of prison time and no commission of a crime leading to a felony conviction for a five-year period, are needed for the 'washout' rule to apply." (Fielder, at p. 1229; People v. Elmore (1990) 225 Cal.App.3d 953, 956-957 ["washout" period does not apply if defendant committed a new offense resulting in a felony conviction within five years even without a showing he was incarcerated in state prison as a result of the conviction].)
We discern nothing in section 667.5, subdivision (b) that requires the prosecution to prove both prison custody and a felony conviction within the requisite five-year period. Rather, under a fair reading of the statute's plain language, a prosecutor need only prove one or the other to avoid application of the washout rule. Nor do we believe that the language is amenable to defendant's urged interpretation that the phrase "prison custody" in section 667.5, subdivision (b) means only incarceration for a felony. Had the Legislature intended such a result, it could have easily limited the phrase "prison custody" to "prison custody for a felony" in section 667.5, subdivision (b). It did not. We will not insert what has been omitted from the statute. (Code Civ. Proc., § 1858; People v. Hinks (1997) 58 Cal.App.4th 1157, 1163 ["The role of the court 'is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted' "].)
Here, the record shows that on August 23, 2001, defendant was sentenced to four years eight months in state prison for felony violations of section 273 a, subdivision (a) and section 136.1, subdivision (b)(1). While his prison sentence was originally suspended, it was later imposed on August 29, 2002. Defendant was subsequently paroled and then returned to custody for parole violations on March 14, 2005, and October 16, 2006. Meanwhile, defendant was convicted of his 2006 drug crime on July 6, 2006, and sentenced to 16 months in prison. On September 4, 2008, defendant was returned to custody for violating parole. On August 1, 2013, defendant committed the instant burglary, which resulted in another felony conviction. Based on the above timeline of defendant's criminal history, there is no five-year period where he was free of both incarceration and commission of a crime leading to a felony conviction.
While it is true that the prosecution could not show defendant committed a new felony in 2006 once his drug possession offense was reduced to a misdemeanor under Proposition 47 (Kindall, supra, 6 Cal.App.5th at p. 1203 [felony convictions that had been reduced to misdemeanors prior to adjudication of prior prison enhancements were "no longer previous felony convictions"], italics added), the record shows that defendant completed a prison term for that offense since he was released on parole after serving his sentence. (People v. Guzman (2005) 35 Cal.4th 577, 590 [while "a period of parole . . . is mandatory from the offender's perspective, [it] is not part of the offender's prison term; it follows the prison term, which ends on the day of release on parole"].) That completed term of imprisonment constitutes "prison custody" within the meaning of section 667.5, subdivision (b). (§ 667.5, subd. (g) [defining "prior separate prison term" as "a continuous completed period of prison incarceration imposed for the particular offense"], italics added.) Thus, the washout rule does not apply to defendant's 2001 felony conviction and the trial court properly enhanced defendant's sentence by one year based on that offense.
DISPOSITION
The judgment is modified to strike the one-year enhancement based on defendant's 2006 drug conviction, which was reduced to a misdemeanor for all purposes under Proposition 47. The trial court shall prepare an amended abstract of judgment to reflect this modification and forward a certified copy of the same to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
BUTZ, Acting P. J. We concur: DUARTE, J. HOCH, J.