Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. GA 048148, Fred J. Fujioka, Judge. Affirmed.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Brian F. Simpson was convicted of multiple counts of first degree residential burglary, receiving stolen property, and related charges. He was sentenced to 30 years in prison. He contends: (1) On counts 1 and 10, there was insufficient evidence for enhancements that were imposed based on findings that “another person, other than an accomplice, was present in the residence during the commission of the burglary.” (Pen. Code, § 667.5, subd. (c)(21).) (2) The case must be remanded for recalculation of his presentence work time credit pursuant to section 4019. (3) The abstract of judgment must be modified to show the correct midterm sentence on count 5. We find merit only in the third contention, so we order modification of the abstract of judgment as to count 5, and otherwise affirm.
Subsequent code references are to the Penal Code unless otherwise stated.
FACTS
In 2001, appellant’s father was a volunteer docent at the Los Angeles Zoo. Inside of an armoire in the spare bedroom of his father’s house, there was a roster that listed the names, addresses, and schedules of all the docents. Appellant lived in an apartment at the time, but occasionally slept in the spare bedroom.
On various dates in the final months of 2001, the homes of some of the docents were burglarized. Most of the victims were not home when the crimes occurred. Some of the items taken in the burglaries were subsequently found at appellant’s apartment, when it was searched pursuant to a parole search condition. Appellant pawned other items at a pawn shop.
At appellant’s apartment, the police also found 2.17 grams of methamphetamine, burglary tools, and a copy of the docent roster. Handwritten notes on the roster showed that appellant had kept certain homes under surveillance, and categorized them as either “priority,” “promising,” or “investigate.”
1. The Disputed Enhancements on Counts 1 and 10
Appellant argues that there was insufficient evidence to support the two 5-year enhancements that were imposed on counts 1 and 10, pursuant to section 667.5, subdivision (a) (section 667.5(a)). Section 667.5(a) authorizes such enhancements if the new offense is one of the violent felonies specified in section 667.5, subdivision (c) (section 667.5(c)). The pertinent violent felony here is that of section 667.5(c)(21), a first degree burglary “wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.”
On count 1, the victim left her house empty when she went to the grocery store, and returned home from the store to find appellant inside the house. He pushed something into her stomach, threatened to stab her, and left.
On count 10, the victim drank coffee in her kitchen around 9:00 a.m., while the door from her bedroom to the backyard was open. Appellant entered the bedroom through that door, took some costume jewelry from a dresser drawer, and left through the door. The victim discovered the burglary around 10:00 a.m., when she walked into the bedroom and observed that there were leaves on the floor and drawers pulled out from the dresser.
Appellant maintains that the above facts were insufficient to show that the victims were “present in the residence during the commission of the burglary,” because a burglary is complete at the point of an entry (People v. Valencia (2002) 28 Cal.4th 1, 11), so the victims had to be present when he first entered their homes. The issue lacks merit, as courts have not interpreted the term “during the commission of the burglary” as appellant suggests. The term includes the entire course of the crime, as a continuous transaction, from the point of entry to the point when the perpetrator reaches a position of safety. (People v. Alvarado (2001) 87 Cal.App.4th 178, 185-192; see People v. Sinohui (2002) 28 Cal.4th 205, 217.) Based on that broad definition, the victims were “present in the residence during the commission of the burglary,” for the purpose of section 667.5(c)(21), as the victim on count 1 went into her home and found appellant inside, and the victim on count 10 was in the kitchen while appellant was burglarizing her bedroom.
2. Worktime Credit
Due to the section 667.5(c)(21) findings, appellant’s presentence worktime credit was calculated at the 15 percent rate specified in section 2933.1, rather than at the higher rate in section 4019. He argues that because the section 667.5(c)(21) findings must be reversed (argument 1, ante), his worktime credit must be recomputed. Since we rejected his issue in argument 1, we necessarily reject his related argument about his worktime credit.
3. Modification of the Judgment
On count 5, receiving stolen property, the trial court imposed a midterm concurrent sentence. The parties agree that the abstract of judgment must be corrected, as it incorrectly shows a midterm sentence of four years, when the correct term for the offense is two years.
DISPOSITION
The clerk of the superior court shall correct the abstract of judgment to show a mid-term sentence of two years, rather than four years, for the offense in count 5, receiving stolen property. A corrected copy of the abstract of judgment shall be sent to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.