Opinion
C088544
06-03-2020
THE PEOPLE, Plaintiff and Respondent, v. ALEX LEONARD AZEVEDO, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CR60054)
After a half-hour of deliberation, a jury found defendant Alex Leonard Azevedo guilty of first degree burglary and taking or stealing a vehicle (as to which defendant admitted a recidivist allegation for a 2006 conviction). Defendant also admitted having a 2005 "serious" felony conviction subject to a five-year enhancement, and a 2013 conviction subject to a one-year enhancement. The trial court sentenced him to state prison for an aggregate term of 18 years; as material here, the term included the two recidivist enhancements for the 2005 and 2013 convictions.
On appeal, defendant argues that he cannot burglarize what he considered to be his own residence or a room therein not separately secured, that the trial court should have instructed sua sponte on consent to enter the residence, and that we must remand to allow the trial court to consider its discretion under recent legislation to strike his five-year enhancement. On our own motion, we consider whether the trial court must strike the one-year enhancement as well pursuant to other recent legislation. We shall affirm the judgment of conviction and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
The primary trial witnesses were defendant's father and aunt. (Defendant did not testify.)
The victim is the father's older sister. Defendant is the father's 40-year-old son.
In early June 2018, defendant called his aunt to say that he and his father had to leave their current residence in Lakeport after the father had a fight with his girlfriend. The aunt lived in Williams. Although she was not keen on defendant coming with his father, she agreed to let them stay with her. They arrived the next day. The aunt allowed the father to sleep in the house, but defendant had to sleep in a detached enclosed patio. The aunt allowed defendant to use the bathroom in the house, and he had access to the garage and a detached shop in the course of performing chores for the aunt. She did not give him a key to the house; she left the back door open when she was not there. She also allowed him access to her Wi-Fi to use with his cell phone. She did not give him permission to enter her bedroom, or to use her truck, cell phone, or tablet computer.
After a few days, the father made other living arrangements. (The record does not disclose the nature of the father's new abode or why defendant did not accompany him.) Defendant remained, to his aunt's dismay because she had not extended an open-ended invitation. For transportation, he was using a bicycle that he had repaired, which belonged to the aunt's grandson.
On either June 13 or 14, the aunt called the father to ask him to tell defendant to leave her house because she thought he was behaving oddly as a result of drug use. She was apprehensive about telling him herself. The father was not certain at trial if he had been able to relay this request, because it was hard to reach defendant by phone, but thought he had.
On Friday, June 15, defendant left the grandson's bicycle in the shop, and walked off, saying "I'm out of here." The aunt assumed from this behavior that the father had told defendant of her request that defendant leave. That night, she saw defendant outside her house, so she locked her doors.
On Saturday, he returned to her house. He was riding a white bicycle. He came in and told her he was hungry, so she made him a sandwich. She did not think he slept outside that night.
He returned again on Sunday morning, coming into the house to tell her that his feet were sore from riding the bicycle. In the afternoon, the neighbors with whom she shared a driveway called to say that he was sitting on their porch, which disturbed them. She went outside and saw him riding his bicycle on the driveway between the houses. She told him "[y]ou know you're not supposed to be here," meaning her house, and he rode off. She did not think he stayed outside her house that night.
On Monday morning, June 18, the father came by to pick up the aunt about 8:00 a.m. so that she could drive him home from surgery in Marysville. The aunt locked the doors before leaving and took her house and truck keys with her. The back door to the garage did not lock. As they drove through town, they saw defendant on the white bicycle at about 8:30 a.m., who waved at them.
The neighbor saw defendant ride up the driveway on the white bicycle. She waved; he nodded at her as he rode by. Later that afternoon, her attention was drawn to loud music from the driveway. Going outside, she saw defendant in his aunt's truck (which was the first time she had seen him in it).
When the father and aunt returned to her house, the white bicycle was there and the truck was gone. The spare keys for the truck were missing from the aunt's bedroom, along with her cell phone and tablet computer. The door into the house from the garage had been pried open. Afterward, the aunt found one of her screwdrivers on a shelf next to the door; it was newly broken. The father called the police to report the thefts.
On Tuesday morning about dawn, a farmer found the pickup truck on the property where he was working (about five miles south of Colusa). There were roads connecting that location to Williams to the west. The hood was still warm, and the keys were in the ignition. The missing tablet and cell phone were inside. The defendant had logged into a social network on the phone. The truck was out of gas.
An officer called to tell the aunt that her truck had been found, and to bring gas to fill it. She was able to start the truck. As she drove home, she saw defendant walking on the road toward Williams.
An officer found defendant on Highway 20 walking toward Williams. Defendant matched the description from the report of the stolen truck. When the officer questioned him, he said his aunt's truck had run out of gas and he had left it in a field. The officer contacted the highway patrol, who arrested defendant.
DISCUSSION
1.0 Sufficient Evidence to Support Burglary Conviction
Defendant in essence contends the evidence at trial establishes as a matter of law that he had permission to enter his aunt's residence, and that her bedroom was not a discrete protected space such that it could separately give rise to a conviction for burglary. We are not convinced by this dubious proposition.
A person cannot be convicted of burglary if the person has an unconditional possessory right to enter the home, or has an invitation to enter with the owner's knowledge and endorsement of a felonious intent. (People v. Garcia (2017) 17 Cal.App.5th 211, 223; People v. Salemme (1992) 2 Cal.App.4th 775, 781.)
The evidence in the present case establishes that defendant had at most a conditional right or invitation to enter the home to use the bathroom. The aunt never accorded defendant the unconditional right to make use of her entire home. Moreover, as trial counsel recognized, the evidence is at best equivocal with respect to whether the revocation of this permission was communicated to defendant, arguing that on the conflicting circumstantial evidence defendant was entitled to an interpretation in his favor. Indeed, it was clear to defendant's father that by Monday, June 18, defendant was not supposed to be on the aunt's property. It is simply not reasonable for defendant to believe that the permissive use of the aunt's main residence continued after she began locking the doors, in contrast with previously leaving them open for defendant when she was not there. That his aunt allowed him to enter when she was present (in light of her apprehension about defendant) does not establish a belief in his unconditional right to enter whether she was present or not.
Given that we conclude the evidence is consistent with defendant lacking any reasonable belief that he had the right to enter the main residence, particularly by means of a forcible entry through the door from the garage, defendant's claim of evidentiary insufficiency must fail. We therefore do not need to consider the alternative argument regarding whether entry into the aunt's bedroom of itself constituted a burglary.
2.0 No Obligation Sua Sponte to Instruct Further on Consent as a Defense
Defense counsel did not express any objection to the standard instruction on burglary. The prosecutor argued that it should have been clear to defendant that he did not have permission to enter the aunt's residence on June 18. As noted above, defense counsel argued the evidence was equivocal about whether it was reasonable to believe defendant still had a right to enter.
Acknowledging that there is not any pattern instruction on the specific issue of consent to enter as a defense to burglary (as opposed to an unconditional right of entry, which the record does not support), defendant contends the trial court nonetheless had a duty to fashion a special instruction sua sponte, or defense counsel was ineffective for failing to propose one. Consent is a defense on which a trial court should fashion an appropriate instruction if substantial evidence supports it. (People v. Sherow (2011) 196 Cal.App.4th 1296, 1302-1303; People v. Felix (1994) 23 Cal.App.4th 1385, 1399-1400.) This requires affirmative evidence that the victim had knowledge of a defendant's felonious purpose in giving consent to entry. (Felix, at p. 1398.) The permission to enter does not of itself stand as a defense to burglary without a concomitant knowledge of a felonious purpose, because permission does not confer any unconditional right of entry. (In re Andrew I. (1991) 230 Cal.App.3d 572, 578-579.) Moreover, the permission to enter must be express and not a passive acquiescence. (Felix, at pp. 1397-1398.)
The record is devoid of any evidence that the aunt expressly granted defendant permission to enter her residence after the previous week, despite her acquiescence in his entries over the weekend while she was present. It is also devoid of any evidence that the aunt had any idea that defendant would betray her hospitality through stealing her truck and her belongings. Consequently, the trial court did not breach any duty to instruct sua sponte on consent, and defense counsel could not have possibly failed to meet any professional norms in failing to request an instruction on consent. (People v. Ledesma (1987) 43 Cal.3d 171, 215.)
3.0 The Matter Must be Remanded for Resentencing
3.1 The Five-year Enhancement
Effective 2019, after defendant's sentencing, the five-year enhancement for a prior "serious" felony is now subject to the trial court's exercise of discretion to strike it. (Pen. Code, §§ 667, subd. (a), 1385, subd. (b); see Stats. 2018, ch. 1013, §§ 1-2.)
The People concede this amendment applies retroactively to defendant's pending appeal. They contend, however, that remand is unnecessary because the record clearly indicates that the trial court would not in any event have exercised this new discretion in defendant's favor. (People v. Franks (2019) 35 Cal.App.5th 883, 892; People v. Jones (2019) 32 Cal.App.5th 267, 272-273.) We disagree.
In sentencing defendant, the trial court declined to grant probation based on the lengthy criminal record of defendant despite past grants; it also imposed the upper term for the burglary conviction given his record of frequent and more serious offenses. Those contexts, however, are not illuminating with respect to whether the trial court would consider striking the five-year enhancement after imposing a doubled upper term for burglary. The trial court did not at any point express an opinion that it found defendant unworthy of any mercy in sentencing. We therefore will remand the matter for the trial court to exercise its discretion to strike the five-year enhancement.
3.2 The One-year Enhancement
On our own motion, we decide whether we must strike the one-year enhancement. If either party is aggrieved, they may petition for rehearing. (Gov. Code, § 68081.)
Effective January 2020, the one-year enhancement for a prior prison term is now limited to "sexually violent" offenses. (Pen. Code, § 667.5, subd. (b), referencing Welf. & Inst. Code, § 6600, subd. (b); see Stats. 2019, ch. 590, § 1.) Defendant's prior prison term in 2013 was not among the enumerated offenses (Pen. Code, § 273.5 [corporal injury to a cohabitant]). As the new law mitigates defendant's punishment without including any saving clause, it applies retroactively, in keeping with the holdings in numerous other cases involving the slew of ameliorative sentencing amendments in recent years, and in recent cases addressing this particular issue. (E.g., People v. Lopez (2019) 42 Cal.App.5th 337, 341-342.) As we must remand in any event, we will direct the trial court to strike the enhancement rather than strike it ourselves.
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded for the trial court to strike the one-year enhancement and to exercise its discretion in deciding whether to strike the five-year enhancement. Following resentencing, the trial court shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
/s/_________
BUTZ, Acting P. J. We concur: /s/_________
MAURO, J. /s/_________
KRAUSE, J.