Opinion
F076734
01-31-2020
THE PEOPLE, Plaintiff and Respondent, v. STEVEN CRAIG BENTON et al., Defendants and Appellants.
Richard J. Moller, under appointment by the Court of Appeal, for Defendant and Appellant Steven Craig Benton. Anne V. Moore, under appointment by the Court of Appeal, for Defendant and Appellant Johnny Dale Osteen. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Vasquez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. BF167145A, BF167145B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw, Judge. Richard J. Moller, under appointment by the Court of Appeal, for Defendant and Appellant Steven Craig Benton. Anne V. Moore, under appointment by the Court of Appeal, for Defendant and Appellant Johnny Dale Osteen. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Vasquez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
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Steven Craig Benton and Johnny Dale Osteen were convicted of first degree burglary and attempted petty theft (a misdemeanor). On appeal they challenge the sufficiency of the evidence underlying their convictions for first degree burglary and argue the trial court committed prejudicial error in failing to instruct the jury on mistake of fact in relation to the burglary charge. We affirm the burglary convictions.
Both defendants further contend that remand for resentencing is necessary in light of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136), which amended the statute governing prior prison term sentencing enhancements. The People agree that remand is necessary, with directions to the trial court to strike the prior prison term enhancements applied to each defendant's sentence. We agree with the parties.
Osteen also argues that remand for resentencing is necessary in light of Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill No. 1393), which gave trial courts new discretion to strike sentence enhancements for serious felony priors. The People agree, as do we.
Finally, Osteen argues the trial court's denial of his Romero motion was an abuse of discretion. We reject this contention.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The judgment of conviction is affirmed. The defendants' sentences are vacated, and the matter remanded for resentencing consistent with this opinion.
PROCEDURAL HISTORY
In March 2017, Benton and Osteen were charged by information with one count of first degree burglary (count 1; Pen. Code, § 460, subd. (a)) and one count of grand theft (count 2; § 487, subd. (a)). The information further alleged that Benton had three prison priors (§ 667.5, subd. (b)) and Osteen had a prior serious felony/strike conviction (§ 667, subds. (a), (c)-(j), 1170.12, subds. (a)-(e)) and three prison priors (§ 667.5, subd. (b)).
Subsequent statutory references are to the Penal Code unless otherwise specified.
Jury trial commenced in May 2017 but ended in a mistrial. Benton and Osteen were retried in November 2017, this time for first degree burglary and petty theft (a misdemeanor). Both defendants were convicted of first degree burglary and attempted petty theft (a lesser included offense of petty theft). In a subsequent, bifurcated bench trial, the court found that Benton and Osteen each had three prison priors and that Osteen had a prior serious felony/strike conviction.
Benton was sentenced to an aggregate term of four years: the low term of two years on the burglary count plus two years for two prison priors (the court struck the third prison prior). Osteen was sentenced to an aggregate term of 15 years: the midterm of four years, doubled to eight years, for the burglary count, plus two years for two prison priors (the court struck the third prison prior) and five years for a prior serious felony conviction.
FACTS
Prosecution Case
Testimony of Dee V.
Dee V. testified for the People. Dee had owned, and lived in, a house in Oildale since 1973. It was a single-story, three-bedroom house, with a garage and front and back yards. In January 2017, a fire broke out at the house. The fire damaged the house "[p]retty good." Demolition and repair work began a week after the fire. Dee had to move to a local hotel for the duration but "[d]efinitely" intended to move back after the repairs were complete. "Almost every day on [his] way to work"—which commenced at 7:00 p.m.—Dee stopped by to check on the place.
On February 2, 2017, Dee went by the house around 7:00 p.m. as usual. At the time demolition work was underway but the house's walls and doors were intact, and the windows were "covered" or boarded up with plywood. The roof of the house was also intact at the time, although it was subsequently removed. The front yard of the house was surrounded by a chain-link fence and contained a dumpster that was being used by the demolition crew. The fire department had posted a notice announcing the property was red-tagged as unlivable and prohibiting unauthorized entry onto the property. Dee still had personal items stored inside the house. His bedroom, for example, was chock full of various items. Dee had single-handedly been removing items from the house "whenever [he] had the opportunity to do so." Dee was adamant he had "[n]ever" permitted anyone else to go in and remove items from the house. On cross-examination, Dee conceded that demolition crews had been removing some worthless items and trashing them in the dumpster, pursuant to his directions.
Around 9:00 p.m. on February 2, 2017, Dee decided to check on the house again, during a "break from work." He arrived at the house at 9:10 p.m. Dee testified: "From the intersection of Norris Road and Airport, I saw a white pickup parked behind my home. I went in, pulled in the alley behind it. I heard voices in the house and [saw] lights coming out of one of the windows. It had been uncovered." Dee briefly went into the backyard. He explained the house itself had no electricity, but he saw beams of light emerging from a window facing the backyard and hitting the back fence; he assumed the beams were from a flashlight. Dee retreated to the alley and called 911.
The white pickup was parked on the outside of the home's back fence. Inside the pickup's bed were items that belonged to Dee, including a "[t]ire and wheel" from an old Mustang and a plastic suitcase containing four "meters for testing TVs"—valued at $1,250—that Dee collected as a hobby. The tire had hitherto been stored in a standalone shed on the property but the plastic suitcase containing the meters was kept in Dee's bedroom within the house. Dee's bedroom had "[m]ostly smoke damage." Other areas of the house were in worse shape and had water damage in addition to fire and smoke damage.
A "six-foot-tall cedar fence" separated Dee's home from the alley. There was a gate in the fence. The gate was locked and secured by a chain. "There was a padlock on the chain," which "went around the post and ... the side of the gate" to secure the latter. When Dee had gone by the house a couple of hours earlier, around 7:00 p.m., "everything was locked up, in good shape." However, when Dee returned at 9:00 p.m., the previously-locked chain was damaged and lying on the ground. The gate was open. Dee did not know who undid the padlock and chain. Dee also saw the boards on one of the windows had been taken down and noticed "flashlights coming out of that window." Dee had not given anyone permission to enter his home on the night of February 2, 2017.
Dee testified he was not living in his house at the time of the burglary solely because of the fire. By the time the trial took place, in November 2017, he had moved back in.
On cross-examination, Dee clarified that the alley behind his house opens to railroad tracks and is visible to traffic on nearby roads. He also acknowledged that the sheriff's department is about three blocks away from the home. Dee was also asked on cross-examination whether he gave a woman called Rhonda K. permission to be on his property. Dee answered in the negative. He also testified that people had tried to break into the house on other occasions as well.
Testimony of Deputy Dwayne Perkins
Deputy Dwayne Perkins was a "K9 officer" with the Kern County Sheriff's Office. Perkins arrived in the alley behind Dee's house at 9:15 p.m. on February 2, 2017. Perkins could "see the lights illuminating inside the residence from the northwest open window, where there was no window any longer." Perkins gave a K9 advisal to the effect, "Kern County Sheriff's Office, police K9. Come out now or I'll send my dog." Benton and Osteen emerged from the house at that point; Osteen had a limp. Perkins did not see any chain, wire cutters, or signs of forced entry into the backyard.
Osteen told Deputy Perkins that he had driven the white pickup truck to Dee's house. Perkins asked Osteen who owned the truck. Osteen said it belonged to his friend, Kristen P. Perkins asked Osteen why Osteen was at Dee's home. "[Osteen] said he heard people had been going there and getting items from the property." Perkins asked who had told Osteen the latter could enter the property; Osteen responded, "'Just people.'" Perkins recalled he had been called to the same location previously, for the same reasons.
Testimony of Deputy Carly Snow
Kern County Sheriff's Deputy Carly Snow interrogated Benton after he was detained. Benton told Snow he arrived at the location in the white pickup truck. Snow asked Benton what he was doing inside the residence. Benton replied he had heard the residence had burned down and the owner was not allowed to remove items within for insurance-related reasons. When Snow confronted Benton with her assessment that he was stealing, he nodded his head in an affirmative gesture. Benton also said he did not think he was doing anything wrong because there was a large dumpster in front of the residence and he assumed everything was going to go into it in any event.
Deputy Snow took photographs of the scene. She was not alerted to the presence of a chain or a broken lock and consequently did not photograph these items.
Defense Case (Osteen)
Rhonda K. testified that she knew Dee V. Rhonda was impeached by the prosecution with a 2011 conviction for second degree burglary and a 2014 conviction for misdemeanor petty theft.
Joe Serrano, an investigator for the defense, testified he took a statement from Rhonda, three days earlier, at the Kern County Jail. Rhonda told Serrano that, in January or February of 2017, Dee had "hired her to load property ... out of his residence that burned down." Rhonda worked for Dee for three or four days at night but he never paid her. Rather he offered her some property from his home in lieu of payment. When Rhonda refused that offer, Dee accused her of taking some of his property. Rhonda also said Dee "showed her how to get in and out of the property and the residence." Rhonda clarified the back fence was not secured at the time.
DISCUSSION
I. Sufficiency of Evidence for Burglary Convictions
Benton and Osteen challenge the sufficiency of the evidence underlying their respective first degree burglary convictions, with specific reference to the habitation requirement for first degree burglary. (§§ 459, 460.) We conclude the evidence was sufficient and affirm the convictions.
Burglary involves the act of unlawful entry accompanied by the specific "intent to commit grand or petit larceny or any felony." (§ 459; see also People v. Montoya (1994) 7 Cal.4th 1027, 1041 (Montoya).) First degree burglary requires entry into an "inhabited" dwelling house. (§ 460, subd (a).) For purposes of the statute, the term "'inhabited' means currently being used for dwelling purposes, whether occupied or not." (§ 459, italics added.) A structure is "inhabited" or "currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises." (§ 459, italics added.) Whether a dwelling is inhabited is a question of fact. (People v. Burkett (2013) 220 Cal.App.4th 572, 582 (Burkett).)
Here, the prosecution had to establish beyond a reasonable doubt that Dee's Oildale home was an "inhabited dwelling" at the time of the burglary. (§§ 459, 460, subd. (a).) Benton and Osteen assert there is insufficient evidence that Dee's home was an "inhabited dwelling" within the meaning of the applicable burglary statutes, namely sections 459 and 460.
When a dwelling house is unoccupied, the question of whether it is inhabited may require a multi-factored analysis. The inquiry encompasses consideration of, among other factors, whether a person lives and sleeps in the dwelling house, whether his or her personal belongings are present, whether he or she had the right to possess the premises by virtue of ownership or a valid lease, and whether he or she intended to occupy the premises. (Burkett, supra, 220 Cal.App.4th at pp. 580-581 (Burkett); People v. Hernandez (1992) 9 Cal.App.4th 438, 441[as a general matter, totality of circumstances are considered in determining whether a structure is inhabited]; People v. Hughes (2002) 27 Cal.4th 287, 355 (Hughes) ["'"'"[the] inhabited-uninhabited" dichotomy turns not on the immediate presence or absence of some person but rather on the character of the use of the building'"'" (italics added)].)
In contrast, where "all of the indicia of habitation [are] present ... it is reasonable to observe that '[t]he dispositive element is whether the person with the possessory right to the house views the house as his dwelling.'" (Burkett, supra, 220 Cal.App.4th at pp. 581-582 [when other indicia of habitation are present, intent can be critical factor in determining habitation]; see People v. Allard (1929) 99 Cal.App. 591, 592 [residence did not become uninhabited when occupants were temporarily absent from the house and had not indicated an intention to go live somewhere else]; People v. Marquez (1983) 143 Cal.App.3d 797, 802 [holding house was inhabited because resident intended to return, even though the resident, under conservatorship, had been absent for two and a half years, and clarifying that "[i]t is the intent and not the length of absence which controls"]; People v. Rodriguez (2004) 122 Cal.App.4th 121, 132 ["A structure that was once used for dwelling purposes is no longer inhabited when its occupants permanently cease using it as living quarters." (italics added)]; People v. Cardona (1983) 142 Cal.App.3d 481, 482-484 (Cardona) [rental unit was uninhabited where the current tenants left without intending to continue living there]; People v. Valdez (1962) 203 Cal.App.2d 559, 561-563 [same].)
Benton and Osteen focus, in this context, on a single case, People v. Aguilar (2010) 181 Cal.App.4th 966 (Aguilar), arguing it was wrongly decided. We reject this contention. In Aguilar, a fire in an apartment building damaged multiple apartments, forcing the residents to temporarily relocate to a hotel. At one point, the resident of one of the units was escorted to his apartment to retrieve some belongings, only to find the defendant in the apartment. Subsequently, the victim was notified that the apartment had been declared unlivable and he would be moved to a different apartment in the same building. The defendant was charged with, and convicted of, first degree burglary. (Id. at pp. 968-969.) On appeal, he argued his conviction was not supported by sufficient evidence because the apartment was declared unlivable and the victim not permitted to return to it. The Court of Appeal concluded this argument "must be rejected because it does not focus on the point of view of the victim at the time the burglary occurred." (Id. at p. 971.) The court upheld the defendant's conviction because, at the time of the burglary, the victim intended to return to live in the apartment.
In Aguilar, the disaster provision of section 459 was applicable. This provision provides that, where a resident is forced to leave the premises because of a fire or other disaster, the premises will be deemed to be inhabited (stated differently, the usual indicia of habitation are deemed to be present). Furthermore, in Aguilar, in addition to the application of the disaster provision, several indicia of habitation were in fact present at the time of the burglary, including the fact that the victim's personal belongings were in the apartment and he had no other permanent home. Aguilar clarified that, when the disaster provision of section 459 is applicable, the victim's intent to return to the apartment is dispositive on the question of habitation. Aguilar's reasoning was effectively reaffirmed in Burkett and we reject the defendants' contention that Aguilar was wrongly decided. (Burkett, supra, 220 Cal.App.4th at p. 581 [when multiple indicia of habitation are present, intent of the victim is dispositive factor in determining habitation].)
Here, the jury was properly instructed regarding the burglary charge. Specifically, the jury was instructed, pursuant to CALCRIM No. 1701:
"Both defendants are charged in Count 1 with first-degree burglary in violation of Penal Code Section 459. To prove that the defendant is guilty of that crime, the People must prove that, one, the defendant entered an inhabited house, and, two, when he entered an inhabited house, he intended to commit theft. [¶ ] ... [¶ ]
"Burglary is divided into two degrees. If you conclude that the defendant committed a burglary, then you must decide the degree. First-degree burglary is the burglary of an inhabited house or room within an inhabited house. A house is inhabited if someone uses it as a dwelling whether or not someone is inside at the time of the alleged entry. A house is inhabited if someone used it as a dwelling and only left because a natural or other disaster caused him or her to leave. A house is not inhabited if the former residents have moved out and do not intend to return even if some personal property remains inside. All other burglaries are second degree.
"The People have the burden of proving beyond a reasonable doubt that the burglary was first-degree burglary. If the people have not met this burden, you must find the defendant not guilty of first-degree burglary. A reasonable but mistaken belief that a house is not inhabited is not a defense to first-degree burglary."
In the instant case, to resolve the question of habitation, the jury was required to determine whether, at the time of the burglary, Dee was living elsewhere solely because of a disaster, i.e., the fire. In this respect, the jury instructions comported with the applicable statutory requirements. (See § 459 (disaster provision).) The jury was also correctly required to find whether Dee intended to return to the house once it became livable again. As explained above, the disaster provision of section 459 provides that, in a situation where a disaster forces the resident to leave the premises, the normal indicia of habitation are deemed to be present. Here, not only was the disaster provision applicable, but many of the normal indicia of habitation were shown, by uncontroverted evidence, to actually be present. For example, Dee had owned and lived in the house for decades; various personal belongings remained in the house even after the fire; the house was in the process of being rebuilt with Dee's involvement; and Dee regularly monitored the property for security purposes. Under these circumstances, consistent with Aguilar and Burkett, Dee's intent was dispositive on the question of habitation.
Given the circumstances of this case, we conclude the jury was properly instructed on the first degree burglary charge. In light of Dee's testimony that he was living elsewhere only because of the fire and intended to return to the house, we further conclude that sufficient evidence supports the jury's verdict that both defendants were guilty of first degree burglary, i.e., burglary of an inhabited dwelling. (People v. Blakeslee (1969) 2 Cal.App.3d 831, 837 ["on appeal the test of the sufficiency of the evidence is whether proof of guilt is substantial, is of solid value, and reasonably inspires confidence"].) II. Alleged Instructional Error
Benton and Osteen argue the trial court prejudicially erred in refusing to instruct the jury with CALCRIM No. 3406, mistake of fact. We reject this contention.
Osteen's counsel requested the following instruction (CALCRIM No. 3406):
"The defendant is not guilty of First or Second-Degree Burglary, if he did not have the intent or mental state required to commit the crime because he reasonably did not know a fact or reasonably and mistakenly believed a fact.
"If the defendant's conduct would have been lawful under the facts as he reasonably believed them to be, he did not commit First or Second-Degree Burglary.
"If you find that the defendant believed that the owner of the property at ... Castaic Avenue, Oildale, was permitting individuals to come to his property and take items from that structure, and if you find that
belief was reasonable, he did not have the specific intent or mental state required for First of Second-Degree Burglary.
"If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for First or Second-Degree Burglary, you must find him not guilty of First and Second-Degree Burglary."
For a specific intent crime like burglary, the mistaken belief in question must only be actual, not both actual and reasonable. (People v. Lawson (2013) 215 Cal.App.4th 108, 114-115; People v. Montoya, supra, 7 Cal.4th at p. 1041.) --------
Osteen's counsel explained the reason for his request for CALCRIM No. 3406: "[W]hat I'm going to argue to the jury is that what happened in that house was directly related to the actions of [Dee V.], that he made efforts to make it look as if people could come in and take objects from his house for whatever reason." Counsel added: "[When] a person ... is giving license to people coming in, I think that it is easy to see where the mistake could be in the basis for a person to come in and doing what they thought was permissible. That's what I'm going to argue. That's why I submitted the instruction." The prosecutor countered: "[T]here is no evidence at all that the victim is giving licenses to anyone to commit theft or take his property. There's evidence to the exact contrary."
Here, the evidence showed that property was fenced in and had a notice out front warning people to stay out. The gate in the back fence was secured with a chain and padlock on the night of the burglary, as confirmed by Dee during his first visit to the property that night at 7:00 p.m. on his way to work. The windows of the house were boarded up. The boards on the window of the room in which Benton and Osteen were detected, were found, by Dee and the police, to have been removed (leading to the obvious inference that Benton and Osteen removed the boards to gain entry into the house). Benton and Osteen arrived at night, in a truck that did not belong to them, and parked—in an attempt to evade attention—in the alley behind the house. Given these circumstances, even assuming the trial court should have given a mistake of fact instruction along the lines requested by Osteen's counsel, the error was harmless under any standard of prejudice. III. Osteen's Romero Motion
Osteen's instant offenses occurred in 2017 (he was convicted the same year) and he had a prior serious felony/strike conviction for second degree robbery from 2000. (§§ 459, 460.) Osteen filed a Romero motion, requesting the court to strike his serious felony conviction under section 1385. (See Romero, supra, 13 Cal.4th 497.) The trial court denied the motion and Osteen now challenges that ruling, arguing the trial court abused its discretion. We detect no abuse of discretion in the court's ruling.
Romero confirmed that, under the Three Strikes scheme, the trial court retains the discretion to dismiss or strike one or more of the defendant's prior serious or violent felony convictions, alleged as a recidivist enhancement under the scheme. (Romero, supra, 13 Cal.4th at pp. 504, 529-530.) More specifically, Romero clarified the court may strike prior "strike" convictions pursuant to section 1385, "in furtherance of justice." (§ 1385; Romero, supra, at p. 531.)
A request for such relief is commonly referred to as a Romero motion. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) The trial court's ruling on a Romero motion is reviewed for abuse of discretion. (Carmony, supra, at p. 375.) Our Supreme Court has noted this standard of review is deferential but not "empty." (People v. Williams (1998) 17 Cal.4th 148, 162 (Williams).) "Although variously phrased in various decisions [citation], it asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts." (Ibid.)
Williams addressed the scope of the inquiry to be undertaken by the trial court in ruling on a Romero motion. The touchstone of the Romero determination is whether "the defendant may be deemed outside the [Three Strikes] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, supra, 17 Cal.4th at p. 161.) Williams clarified that making this assessment requires "balanc[ing]" the defendant's "constitutional rights," including "the guarantees against disproportionate punishment of the Eighth Amendment to the United States Constitution and article 1, section 17 of the California Constitution" on the one hand, and "society's legitimate interests," including "the fair prosecution of properly charged crimes," on the other hand. (Williams, supra, at pp. 160-161.)
In striking the requisite balance, "preponderant weight must be accorded to factors intrinsic to the [Three Strikes] scheme, such as the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." (Williams, supra, 17 Cal.4th at p. 161; see Romero, supra, 13 Cal.4th at p. 531 [in exercising its discretion as to whether to strike a prior strike conviction, the court must consider the "'defendant's background,'" "'the nature of his present offenses,'" and other "'individualized considerations'"].) "'[W]hen the balance falls clearly in favor of the defendant, a trial court not only may but should exercise the powers granted to him by the Legislature and grant a dismissal in the interests of justice.'" (Carmony, supra, 33 Cal.4th at p. 375.)
Here, Osteen had, as he himself acknowledged in his Romero motion, "an extensive criminal record" spanning over two decades and had served several prison terms. Indeed, Osteen had committed multiple violations of the law relatively close in time to the instant offenses. Under these circumstances, we cannot say the court abused its discretion in denying Osteen's Romero motion. IV. Sentence Enhancements
Benton and Osteen contend that remand is necessary pursuant to recently-enacted Senate Bill No. 136 (effective January 1, 2020), which has retroactive effect. They argue that, under the new law, the trial court must strike the prior prison term enhancements applied to their sentences. The People agree that remand is appropriate with directions to the trial court to strike the prior prison term enhancements applied against both defendants. We agree with the parties.
Osteen further contends remand is necessary pursuant to Senate Bill No. 1393 to give the trial court the opportunity to exercise its newly-acquired discretion to strike his prior serious felony conviction for sentencing purposes. (§ 667, subd. (a)). The People agree that remand is appropriate. We agree with the parties.
DISPOSITION
Benton's sentence, as well as Osteen's sentence, are vacated. The matter is remanded, in light of Senate Bills Nos. 136 and 1393, for resentencing consistent with this opinion. The judgment is affirmed in all other respects.
/s/_________
SMITH, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
SNAUFFER, J.