Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SCO62822A
Haerle, Judge
I. INTRODUCTION
After appellant had waived a jury trial on a seven-count information and submitted the matter to the court on the basis of the record established in the preliminary hearing, the trial court found him guilty on all of the substantive counts charged and also found the remaining prior conviction allegations to be true. The principal count charged was first degree burglary. Appellant appeals, claiming that the structure from which he was seen taking various items was not part of a residential structure, and thus he could not properly be found guilty of first degree burglary. We disagree and hence affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
At around 11:30 a.m. on the morning of December 7, 2006, Alvina Valdez was in her bed in her second floor residence in Redwood City, ill with the flu. She heard a vehicle’s engine running, looked out her window at a neighboring building, and saw “a vehicle I did not recognize” and “two people getting out of the vehicle and one was with bolt cutters cutting the locks off of the storage, and they both proceeded to take things.” Valdez then got out of bed, “put on a pair of pants, and I went down . . . into the alley and I took photos” of the two men and the BMW into which they were putting the goods they were taking from the locker. Those photos were later received into evidence at the preliminary examination, and are in the record before us. Per Valdez’s testimony, the wall on which the storage locker was located was attached to a wall which formed the wall of some “condos.”
In actuality, per the victim of the burglary, one Kristen Klingvall, the structure to which the storage locker was attached was the wall to the living room of her apartment (not a “condo”). That wall, according to the description given by Ms. Klingvall to a Redwood City police officer, was “the common wall between the carport and her residence, her apartment,” where Klingvall lived. Directly on the other side of the wall was Ms. Klingvall’s living room, and there was no space between the “wall with the storage locker and her living room.”
Going back to the events of December 7, 2006, after Valdez took her several pictures of the burglary in progress (and even had a very brief conversation with appellant and a companion), she called the police who, five days later, located the BMW featured in Valdez’s pictures and appellant. They arrested appellant and found several items of the property stolen from Klingvall’s storage locker and other nearby storage lockers in appellant’s residence. The police also found two bolt cutters in the back yard of appellant’s residence.
On July 23, 2007, an amended information was filed charging appellant with one count of first degree burglary (Pen. Code, § 460, subd. (a)), one count of grand theft (§ 487, subd. (a)), four counts of possession of stolen property (§ 496, subd. (a)), and one count of misdemeanor possession of burglary tools. (§ 466.) The amended information also alleged that appellant had a serious prior felony (§ 667, subd. (a)), several prior strike convictions (§ 667, subds. (b)-(i), and a prior felony conviction.. (§ 1203, subd. (e)(4).
All statutory references are to the Penal Code, unless otherwise noted.
Two days later, on July 25, 2007, appellant waived a jury trial and submitted the matter for a decision by the trial judge on the basis of the record established at the preliminary hearing; the prosecution also agreed to strike the serious prior felony conviction. The court found the appellant guilty of all seven of the substantive charges contained in the amended information, and also found the remaining prior conviction allegations to be true.
On November 16, 2007, the court sentenced appellant to the two-year lower term on count one (doubled to four years pursuant to § 1170.12, subd. (c)(1)) with concurrent two-year terms on counts two through six and a concurrent jail term on the misdemeanor count.
Appellant filed a timely notice of appeal a few weeks later.
III. DISCUSSION
Appellant’s sole argument is that he could not properly be convicted of first-degree burglary, because the location at which he committed the burglary was not of “an inhabited dwelling house” as that term is used in section 460. We disagree.
As recently as 1996, our Supreme Court repeatedly stressed the breadth accorded that definition. In People v. Cruz (1996) 13 Cal.4th 764 (Cruz), that court held that section 460 applied to a burglary of an “inhabited vessel.” (Id. at pp. 772-781.) In so holding, the court, in an opinion authored by Chief Justice George, several times stressed the principle that the definition appearing in section 460 had theretofore been, and more importantly should be, given a broad interpretation. At least three times in the course of that opinion, the Chief Justice stressed that “[t]he term ‘inhabited dwelling house’ for many years has been considered a broad, inclusive definition . . . . ” and “California cases broadly interpreting the term ‘inhabited dwelling house’ . . . used in section 460” supported the court’s conclusion regarding an “inhabited vessel.” (Id. at pp. 776, 778-779.) Indeed, and as pertinent to this case, as somewhat of an introduction to this general interpretative issue, the court cited approvingly to the opinion in People v. Moreno (1984) 158 Cal.App.3d 109, 113 (Moreno), that “areas such as an attached garage not having an entrance into the house . . . are within the above stated policies informing the law of first degree burglary . . . .” (Cruz at p. 776.)
Moreno is far from the only case so holding regarding adjoining garages or carports. No fewer than five other reported cases have held that a burglary committed in a garage or carport connected or attached to a dwelling (whether the dwelling is a private home or apartment building) constitutes first degree burglary under sections 459 and 460. Those cases are: People v. Cook (1982) 135 Cal.App.3d 785, 795-796 (Cook) [also involving entrance into a patio area]; People v. Zelaya (1987) 194 Cal.App.3d 73, 75 (Zelaya) [also involving basement area and storage rooms]; People v. Ingram (1995) 40 Cal.App.4th 1397, 1402-1404 (Ingram), overruled on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 560 [entry into garage which shared “the same roof” as house and carport]; People v. Fox (1997) 58 Cal.App.4th 1041, 1045-1047 (Fox) [attached garage]; and In re Edwardo V. (1999) 70 Cal.App.4th 591, 593-595 (Edwardo V.) [common garage of a duplex].
Appellant’s citations to three of these cases are flawed: in his briefs to us Ingram becomes Ingraham; Zelaya becomes Zalaya; and Edwardo becomes Eduardo.
Other cases affirming first degree burglary convictions, but involving slightly different contiguous or adjacent structures, include: People v. Coutu (1985) 171 Cal.App.3d 192, 193-194 (Coutu) [breaking into a storeroom connected with an inhabited dwelling via a “breezeway”]; People v. Wise (1994) 25 Cal.App.4th 339, 345-347 (Wise) [breaking through a gate and entering the outdoor stairway of a small apartment building]; People v. Woods (1998) 65 Cal.App.4th 345, 347-350 [breaking into the laundry facility in an apartment house]; and People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1106-1112 [breaking into an electrician’s home office which had a common wall with his residence].
Appellant attempts to avoid the impact of these cases by distinguishing a case relied on by both the prosecutor in the trial court and the Attorney General here, In re Christopher J. (1980) 102 Cal.App.3d 76 (Christopher J.). As appellant points out, the issue in that case concerned whether there was a burglary of a “building” as that term is used in section 459 when the juvenile appellant broke into a carport which was connected to a dwelling. With one justice dissenting, the court held that there was. However, and as appellant notes at considerable length in both his briefs to us, the charge against that defendant was not first degree burglary as defined in section 460 and as charged here. Appellant is also correct that several of the cases cited above incorrectly rely on Christopher in attempting to sustain convictions of first degree burglary under section 460, a section not even cited in that opinion.
The cases that rely––albeit never solely––on Christopher J. to sustain a conviction of first degree burglary of an “inhabited dwelling house” for purposes of section 460 are Edwardo V., Fox, and Zelaya. The opinions that rely on Christopher J.––properly in our opinion––for the proposition that a carport can be an integral part of the structure of a dwelling for purposes of either sections 459 or 460 include Cook and Wise. The other cases cited above do not reference Christopher J. at all.
But, as noted in the preceding footnote, there is ample authority which does not misapply Christopher J. holding that forcible entry into a part or parcel of a unified structure that includes an “inhabited dwelling house” (§ 460) constitutes first degree burglary. Most importantly, this includes Moreno, the case cited approvingly by our Supreme Court in Cruz. In Moreno, the appellate court affirmed a first degree burglary conviction of a defendant who had broken into a garage which “was attached to [the victim’s] residence by means of a common wall, but [was] accessible only through an exterior entrance. It housed family laundry facilities and was used for storage purposes.” (Moreno, supra, 158 Cal.App.3d at p. 112.) Rather surprisingly in our opinion, neither of appellant’s briefs to us cites, much less discusses, Cruz and the “broad standard” principle it articulates, or the factually very similar Moreno case cited approvingly therein by our Supreme Court.
Other well-reasoned cases applying the “broad standard” specifically approved by Cruz include the decision of Division One of this court in Wise. That case did not involve a garage or a carport but, arguably, an area even more remote from the inhabited portion of a residence: a gate and an open stairway inside that gate that led to the porch and then the entry doors to a “three-story, three-unit, Victorian-style building” in San Francisco containing three apartments. (Wise, supra, 25 Cal.App.4th at p. 341.) The defendant was seen, and later charged with, cutting through the gate, entering onto the stairway to the building (but specifically not its porch) and attempting to steal bicycles chained to the railing of the stairway. After discussing, among other cases, the rationales of Coutu, Moreno, and Cook, Justice Dossee wrote for a unanimous Division One: “Using this same reasoning, we conclude that the entry into the stairway constituted burglary. The stairway is attached to the apartment building and covered by the building’s roof. It forms an integral part of the building. Defendant’s entry through the gate into the stairway was a penetration of the outer boundary of the building.” (Wise, supra, 25 Cal.App.4th at pp. 346-347.)
Another well-reasoned decision is Ingram, supra, 40 Cal.App.4th at pp. 1402-1404. There, the defendant was charged with burglarizing “a garage attached to an inhabited dwelling house.” The court explained: “The [victim’s] house, garage and carport share the same roof. In order to enter the garage from the house, one must exit the ‘rumpus room’ door into the carport and use a garage door opener to enter the garage.” (Id. at p. 1402.) After discussing Moreno, Coutu, and Cook, a unanimous Fifth District rejected the defendant’s argument that he could not be found guilty of first degree burglary, stating: “There is no meaningful distinction between an attached garage with an outside door and an attached garage with an inside door for purposes of deciding the degree of burglary. The close physical proximity of an attached structure is precisely what increases the potential for confrontation and threatens the safety of residents. This potential is no less when access to the garage is from outside rather than from inside the house. The proper focus is whether the attached structure is an integral part of a dwelling, that is, functionally interconnected with and immediately contiguous to other portions of the house. [Citation.] The absence of an inside door does not compel a designation of second degree burglary.” (Ingram, supra, 40 Cal.App.4th at p. 1404.)
Just so here. As noted above, per the testimony of a Redwood City police officer and the pictures taken by neighbor Valdez, victim Klingvall’s storage locker was on the carport-side of a common wall, on the other side of which was Klingvall’s living room. Under the authorities cited and discussed above, this is more than sufficient to make the burglary a first degree burglary for purposes of section 460.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.