Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA087789 Dewey Lawes Falcone, Judge.
Cheryl B. Johnson, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Eric Steve Caballero, appeals from his convictions for: first degree burglary of an inhabited dwelling (Pen. Code, § 459); elder abuse resulting in death (§ 368, subd. (b)(1)); and grand theft of a firearm. (§ 487, subd. (d)(2).) The jury also found the burglary was a violent felony because another person was present in the residence (§ 667.5, subd. (c)) and that defendant proximately cause the death of Adelina Garcia. Defendant argues the trial court improperly failed to instruct the jury on the meaning of the term “proximate cause” and there was insufficient evidence to support his burglary conviction. We affirm with minor modifications.
All further statutory references are to the Penal Code unless otherwise indicated.
We have previously related the material facts in this case in People v. Caballero (Mar. 16, 2009, B206606) [nonpub. opn.] where we have dismissed a prosecutorial appeal from a section 1385, subdivision (a) dismissal of a murder count. We reiterate those facts here. We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Derrick Gonzalez knew defendant through high school. Mr. Gonzalez “hung out” with defendant after they left high school. Eventually, Mr. Gonzalez stopped associating with defendant. Mr. Gonzalez stopped their association because of the effects of drug use on defendant’s actions. Mr. Gonzalez acknowledged he had used marijuana and crystal methamphetamine. Defendant spent the night at Mr. Gonzalez’s home on March 2, 2005. Mr. Gonzalez’s laptop computer was missing. Defendant indicated he knew where it was located and would help get it back. However, at approximately 4 a.m., defendant left with some friends in an Astro van. Initially, defendant said he would get his cellular phone from his friends, who had parked the van down the street. However, defendant jumped on the passenger door of the van. The van drove a short distance, defendant got inside, and they drove away.
Later that morning, Mr. Gonzalez went to defendant’s house. When Mr. Gonzalez knocked on the front door, no one answered. Mr. Gonzalez looked into the house through the kitchen window. Defendant was inside with a few men and one woman. Mr. Gonzalez then went to the window of defendant’s younger brother. However, defendant’s younger brother would not open the door. Mr. Gonzalez waited in his car before returning to the front door. Two men came outside and told Mr. Gonzalez to leave. These two individuals left in a black Mercedes. Mr. Gonzalez waited in his car approximately 30 minutes. The same individuals that had left in the Mercedes returned in a blue Astro van with additional men. The men in the van signaled to Mr. Gonzalez to leave. The van was parked down the street and the men got out. Mr. Gonzalez went to a neighbor’s house to summon the police. The neighbor said a deputy sheriff was already present. The deputy was in the neighbor’s home. The deputy escorted Mr. Gonzalez out of the neighborhood. Mr. Gonzalez later called the police. Mr. Gonzalez told the deputies about what occurred at defendant’s home and gave them descriptions of the black Mercedes and blue Astro van.
On the morning of March 4, 2005, defendant, Eugene Silos, Alberto Martinez, and Mayra Huitron were driving around in the blue Chevrolet Astro van. The van was owned by Mr. Martinez. Mr. Martinez was found to be an unavailable witness. His preliminary hearing testimony was read to the jury. The four had been up all night using methamphetamines. Defendant directed Mr. Martinez to the home of Patricia Henriquez and her husband Nelson Cardoza, in La Mirada. Ms. Henriquez and Mr. Cardoza were defendant’s aunt and uncle respectively. Mr. Cardoza’s 86-year-old grandmother, Adelina Garcia, and his 14-year-old daughter, Katherine Cardoza, also lived there. The group intended to take showers, “kick back,” and have something to eat. Mr. Martinez parked the van across the street from the Cardoza residence. Defendant got out of the van and walked to the front door. Defendant either opened the door or was allowed inside by someone. After approximately 20 minutes, Mr. Martinez became impatient. Mr. Martinez got out of the van and knocked on the front door. While looking through the small glass portion of the door, Mr. Martinez saw what he believed to be two individuals inside. Defendant seemed to be “getting off somebody” in Mr. Martinez’s words. Defendant came to the door, but did not open it. Defendant told Mr. Martinez to wait in the van.
Ms. Cardoza will hereafter be referred to as Katherine for purposes of clarity.
Mr. Martinez went back to the van and spoke to Mr. Silos. Mr. Martinez, Mr. Silos, and Ms. Huitron were all becoming impatient while defendant was inside the Cardoza residence. Mr. Martinez waited a short while before returning to the house. When Mr. Martinez approached the house, he heard moaning sounds coming from inside. Mr. Martinez went to the window to the left of the front door. Defendant looked through the blinds of the window. Defendant again told Mr. Martinez to wait in the car. Mr. Martinez returned to his car. Mr. Martinez believed defendant might be having sex with someone inside. Mr. Martinez again went toward the front door. As Mr. Martinez approached, defendant opened the door. Mr. Martinez then spoke to defendant. At the preliminary hearing, Mr. Martinez testified: “I asked him why he was acting like a punk, not me but especially his friends--I was pointing towards my vehicle–because they were sitting in there. I asked why he was acting like that.... He replied, you know. And I told him, no, I don’t know.” Mr. Martinez noticed a “reddish,... saliva-type” liquid on defendant’s right shoe. Mr. Martinez believed the substance might be semen. Defendant was asked if he was having sex. Defendant responded, “No - - well you know.” Defendant tried to close the door on Mr. Martinez. Mr. Martinez then hit defendant in the face. Defendant closed the door. Mr. Silos had also started to approach the house. Mr. Silos and Mr. Martinez returned to the van and drove away.
Mr. Silos was dropped off at his home. After showering, Mr. Silos drove a black Mercedes to a nearby Starbucks. Mr. Silos was arrested at the Starbucks for burglary tool possession. Mr. Silos told the detectives about having gone to the house in La Mirada. Mr. Silos also told the authorities where Mr. Martinez might be located.
Katherine left for school at 7:30 a.m. on March 4, 2005. Katherine’s great grandmother, Ms. Garcia, was at home at 7:30 a.m. Ms. Garcia was always home to let Katherine inside after school. Katherine used a special door knock. Ms. Garcia’s biggest fear was that someone would come into the residence. Ms. Garcia never opened the door for someone she did not know. When Katherine arrived home at approximately 4 p.m. on March 4, 2005, no one answered her knock on the front door. Katherine went to the side patio door. However, the gate was locked. Katherine called out to Ms. Garcia. Katherine then went to the garage side of the house where she found another gate unlocked. Katherine found a door to the living room partially open. When Katherine came inside, her dog rushed toward her. Katherine found food everywhere in the kitchen as though Ms. Garcia had been cooking. Ms. Garcia’s shoe was in the middle of the floor.
Katherine continued through the house in an effort to find Ms. Garcia. Katherine heard water running and music playing. Katherine opened the door to Ms. Garcia’s room. Katherine saw: “chaos”; a chair had been turned over; several stools had been turned over; blood on the floor and the bed; the bedding was no longer on the bed; the legs of one of the stools were on the bed; and a bundle of blankets were wrapped up near the bathroom. Katherine believed Ms. Garcia’s body was inside the blankets. Ms. Garcia’s room was typically perfectly neat with everything in its place. Katherine ran to the living room to telephone Ms. Henriquez. (As noted, Ms. Henriquez is Katherine’s mother.) Katherine was unable to reach Ms. Henriquez. Katherine then telephoned her father. Mr. Cardoza told Katherine to check to see if Ms. Garcia was breathing. Although Katherine was afraid to do so, she pulled back the blanket, exposing some skin. Katherine told her father to come home immediately. Katherine took her dog and went outside. Mr. Cardoza called Katherine and told her to call the police, which she did. Katherine remained on the phone with the emergency operator until the sheriff’s deputies arrived. A recording of the emergency call was played for the jury at trial. Katherine recalled telling the deputies that defendant was someone with whom her family might have had a problem. Defendant was last in Katherine’s home on the prior New Year’s Day for a family reunion.
Mr. Cardoza received the telephone call from Katherine as he was leaving work on March 4, 2005. When he arrived home, he found Katherine with sheriff’s deputies. Mr. Cardoza had normally parked his Dodge Ram pickup truck alongside the house at the curb. The keys for that truck were kept on a hanger next to the phone in the kitchen. When Mr. Cardoza arrived home, the Dodge truck and the keys were missing. Once they were allowed to go inside the house early the following morning, Mr. Cardoza noticed his gun case was open on the floor of the master bedroom and two of his guns were missing. One gun was a Colt.45 Mark IV combat commander semiautomatic handgun. The other was a “Tech 22,” 30-round weapon that looked like an Uzi machine gun with a banana clip. Mr. Cardoza kept the guns locked in his bedroom. Mr. Cardoza did not give anyone permission to take his guns. A third gun was still in the closet.
An autopsy performed on Ms. Garcia revealed that she died of blunt force trauma. Ms. Garcia’s injuries included: a fractured skull; hemorrhaging around the brain; broken bones in both forearms; bruising around her eyes, lips, and jaw; lacerations on her face; a laceration measuring five and ten-sixteenths inches by three and five-sixteenths inches on the left side of her head; and a laceration measuring two and one-quarter inches by one and one-half inch on her left ear; severe bruising on both hands and wrists consistent with attempts to ward off a blow; bruising measuring four and one-half inches by two and one-half inches on her left shoulder; and a bruise measuring thirteen inches by three and three-quarter inches on her left arm. It appeared the injuries to Ms. Garcia’s head were caused by a blunt object. Such blunt force trauma caused sufficient bleeding around her brain to ultimately result in her death. Ms. Garcia’s death was not instantaneous. The broken bones in Ms. Garcia’s forearms and bruises on her hands were likely caused by being struck by a blunt object. The bruises on Ms. Garcia’s hands were almost black. The hemorrhaging in Ms. Garcia’s brain as well as bleeding in her arms and other areas of the body was indicative that she was still alive when the blows were inflicted.
Deputy Lillian Peck arrived at the Cardoza residence at 4:10 p.m. on March 4, 2005. Deputy Peck noted that the victim’s bedroom was “ramshackled” and there was furniture everywhere. Deputy Peck saw blood splatter everywhere. It looked to Deputy Peck that a “big fight” had occurred at the residence. Deputy Peck was told Ms. Garcia was dead. There were pools of blood on: Ms. Garcia’s clothing; the bedding she was laying upon; the furniture next to her body; and the floor. Deputy Peck saw blood on the legs of one of the stools in the room. The victim’s shoe was found in the kitchen.
Maria Rosario Medina lived approximately 10 houses away from the Cardoza home. On March 4, 2005, Ms. Medina drove past the Cardoza house at approximately 2 p.m. Ms. Medina did not see the gray pickup truck that was normally parked outside the garage at the home. When Ms. Medina passed by the house again at 3 p.m., there were no cars in the driveway of the house. Ms. Medina drove past again at 4 p.m. Ms. Medina saw a young girl holding a cat or dog in her arms outside the house. Ms. Medina saw a gray Ford with two Latinos inside looking at the house while driving slowly past. The driver was between 21 and 22 years old. The passenger was approximately 19 or 20 years old.
Jorge Campos knew defendant from high school. Mr. Campos “hung out” with defendant every day in 2005. Mr. Campos also knew Mr. Silos and Mr. Martinez. But Mr. Campos did not consider them his friends. Defendant was with Mr. Martinez during the week of March 4, 2005. Defendant came to Mr. Campos’s house on March 4, 2005, at approximately 2 or 3 p.m. Defendant had a black bag containing two firearms. One firearm was a handgun, the other an Uzi automatic gun. Defendant left with Mr. Campos at approximately 4:30 or 5 p.m. They drove away in Mr. Campos’s girlfriend’s car, a gray Ford Focus. Defendant and Mr. Campos went to sell the guns. Defendant received money for one of the weapons, but the other was “stolen” or “taxed” by the buyer. Thereafter, Mr. Campos rented a room for defendant at the Quality Inn. Mr. Campos rented the room because defendant had no identification. Defendant paid for the room. Mr. Campos had just met Mr. Martinez that week. Mr. Campos was aware that defendant and Mr. Martinez were drug users. Defendant said that when he had money and drugs he always had friends. Mr. Campos did not notice anything unusual about defendant’s face or any black eye on the afternoon of March 4, 2005.
At approximately 3 p.m. on March 6, 2005, Deputy John Steele saw a teal-colored Chevrolet Astro van which matched the description of an alert regarding an automobile related to a murder. The license plate number on the van matched the one given to Deputy Steele. Deputy Steele confirmed through his computer that the van was suspected of being involved in the murder. Deputy Steele requested assistance before stopping the van. A felony traffic stop was utilized. Each individual was ordered out at gunpoint. Five individuals were inside: defendant; Mr. Martinez; Ms. Huitron; Maritza Martinez; and Angel Rodriguez. The van was then secured and towed. Deputy Raymond Cardenas assisted in the traffic stop and arrest of the van’s occupants. When defendant was being booked into custody, he had a red substance on his left tennis shoe. Deputy Cardenas collected defendant’s shoes and clothing, which were eventually given to homicide Detective Jonas Shipe. Detective Cardenas noted on the booking sheet that defendant had a black eye at the time of the March 6, 2005 arrest. Detective Shipe took a deoxyribonucleic acid swab from defendant.
Los Angeles County Sheriff Senior Criminalist Sean Yoshii went to the Cardoza home on March 4, 2005. Mr. Yoshii took several items, including: a green bench; the legs from the green bench; a light-colored stool; a dark-colored stool; and parts of the dark-colored stool that had broken off. Each of the items was tagged with a specific number. Mr. Yoshii also took specimens from Mr. Cardoza’s Dodge Ram truck. Samples taken from blood stains on defendant’s shoes worn on March 6, 2005 were matched to deoxyribonucleic acid reference samples from Ms. Garcia, Mr. Silos, and Mr. Martinez. One stain involved a mixture of deoxyribonucleic acid with Ms. Garcia and Mr. Martinez included as possible contributors. A second stain involved a deoxyribonucleic acid mixture with Ms. Garcia and defendant as possible contributors. The source of the deoxyribonucleic acid was possibly saliva, skin cells, or blood. No matches were found for latent fingerprints lifted at the scene of the crime. The fingerprints of Ms. Huitron, Mr. Martinez, and Ms. Martinez were identified from latent prints found in the Chevrolet Astro van.
First, defendant argues the trial court’s failure to instruct the jurors on the meaning of the term “proximate cause” as used in section 368, subdivision (b)(3) requires reversal of the jurors’ finding that he proximately caused Ms. Garcia’s death. The trial court instructed the jurors with CALJIC Nos. 3.30 and 9.38. The count 4 verdict form included a special finding: “We further find the allegation that the defendant proximately caused the death of said victim, age 86 years of age [sic] to be ____.” During the deliberations, the jury sent a question to the judge, “Penal Code section 368(a)(3) pertaining to special circumstances on count 4. Not found in judge[‘]s instructions to jury[.] Please provide[.]” Thereafter, the jurors made a true finding as to the special allegation defendant proximately caused Ms. Garcia’s death.
Section 368 states in part: “(b)(1) Any person who knows or reasonably should know that a person is an elder... and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder... to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder... willfully causes or permits the person or health of the elder... to be injured, or willfully causes or permits the elder... to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years. [¶]... [¶] (3) If in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows: [¶]... (B) Seven years if the victim is 70 years of age or older.”
CALJIC No. 3.30 was given as follows: “In the crime of elder or dependent adult abuse resulting in death charged in count 4 and the allegations charged in counts 1, 2, 3 and 4, namely that the defendant personally used a deadly and dangerous weapon in violation of Penal Code section 12022 (b)(1), there must exist a union or joint operation of act or conduct and general criminal intent. [¶] General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful.” CALJIC No. 9.38 was given as follows: “[D]efendant is accused in count 4 of a violating [sic] Penal Code section 368(b)(1). [¶] Every person who knows or reasonably should know that a person is an elder or dependent adult and who under circumstances or condition likely to produce great bodily harm or death: [¶] One. Willfully causes or willfully and as a result of criminal negligence permits any elder or dependent adult to suffer or inflicts thereon unjustifiable physical pain or mental suffering; or [¶] Two. Having the care or custody of any elder or dependent adult willfully causes or willfully and as a result of criminal negligence permits the person or health of the elder or dependent adult to be injured or willfully causes or willfully and as a result of criminal negligence permits the elder or dependent adult to be placed in a situation in which her person or health is in danger is guilty of the crime of Penal Code section 368(b)(1). [¶] An elder is a person residing within this state who is 65 years or older. [¶] An elder is a person 65 years or older. [¶] The word ‘likely’ as used in this crime means the circumstances or conditions are such that would present a substantial danger, that is, a serious or well-founded risk of great bodily harm or death. [¶] The word ‘willfully’ as used in this instruction means with the purpose or willingness to commit the act or to make the omission in question. [¶] The word ‘willfully’ does not require any intent to violate the law or to injure another or to acquire any advantage. [¶] In the crime charged in the Information, again, there must exist a union or joint operation of act or conduct, act or conduct, and either a general criminal intent. [¶] To establish general criminal intent, again, it is not necessary that there should exist an intent to violate the law. A person who intentionally does that which the law declares to be a crime is acting with general criminal intent, even though he may not know that such conduct is unlawful. [¶] In order to prove this crime, each of the following elements must be proved: [¶] One. A personal willfully or willfully and as the result of criminal negligence, inflicted unjustifiable physical pain or mental suffering on an elder; or [¶] Two. The perpetrator’s conduct occurred under circumstances likely to produce great bodily harm or death; or [¶] Three. The perpetrator knew or reasonably should have known the other person was an elder.” The trial court later reread the instruction to correct its error in the use of the disjunctive “or” rather than “and” between elements one and two.
A trial court is obliged to instruct, even without a request, on the general principles of law which relate to the issues presented by the evidence. (§§ 1093, subd. (f), 1127; People v. Abilez (2007) 41 Cal.4th 472, 517; People v. Wims (1995) 10 Cal.4th 293, 303, limited on another ground in People v. Sengpadychith (2001) 26 Cal.4th 316, 326; People v. Turner (1990) 50 Cal.3d 668, 690; People v. Flannel (1979) 25 Cal.3d 668, 680-681.) In People v. Bland (2002) 28 Cal.4th 313, 333-338, our Supreme Court considered the need for a special instruction defining “proximate cause” as it relates to a section 12022.53, subdivision (d) enhancement wherein a defendant discharges a firearm which proximately causes great bodily injury or death. Associate Justice Ming W. Chin explained, “[P]roximate causation does have meaning peculiar to the law, and [] a jury would have difficulty understanding its meaning without guidance.” (Id. at p. 335, original italics; see People v. Carrillo (2008) 163 Cal.App.4th 1028, 1036-1038.) In this case, the trial court should have also instructed the jury on proximate cause as it related to the elder abuse special finding in count 4. Further, an accused has a due process right to instruction on the elements of an enhancement. (People v. Sengpadychith, supra, 26 Cal.4th at p. 328; see People v. Izaguirre (2007) 42 Cal.4th 126, 154.)
However, the instructional error was harmless. (Chapman v. California (1967) 386 U.S. 18, 23-24; People v. Flood (1998) 18 Cal.4th 470, 489.) In Bland, our Supreme Court held: “[W]e stated in Mitchell v. Gonzales[ (1991)] 54 Cal.3d [1041,] 1050, that jurors hearing the term ‘proximate cause’ may ‘misunderstand its meaning....” To complete what we said there, jurors ‘may misunderstand its meaning or improperly limit their discussion of what constitutes a cause in fact.’ (Ibid., italics added.) However, jurors who improperly limit their discussion of what constitutes proximate cause will not find causation where it does not exist. The correct definition of proximate causation is broader, not narrower, than jurors might assume. In a criminal case, we noted that ‘in Mitchell we criticized the [former proximate cause instruction] as placing undue emphasis on physical or temporal nearness. [Citation.] Thus,... any such confusion on the jury’s part could only benefit defendant.’ (People v. Roberts[ (1992)] 2 Cal.4th [271] 313; see also People v. Catlin (2001) 26 Cal.4th 81, 157 [citing this language with approval].) On the facts of this case, the jury could not have misunderstood the term ‘proximate cause’ in a way that would have prejudiced defendant, i.e. that would have resulted in a finding of proximate causation on an improper basis.” (People v. Bland, supra, 28 Cal.4th at p. 338, original italics; see also People v. Sanchez (2001) 26 Cal.4th 834, 848-849 [defendant who joined others in firing at a victim was the proximate cause of death for purposes of murder conviction even when it was impossible to tell who fired the fatal shot]; People v. Carrillo, supra, 163 Cal.App.4th at p. 1038.)
Defendant argues that the personal weapon use allegation not true finding, and the not guilty findings as to the robbery and grand theft charges, suggest the jurors were skeptical of the prosecutor’s case and argument and doubted that defendant acted alone. Defendant therefore concludes that the failure to properly instruct on proximate cause could have caused a misunderstanding on the jurors’ part. However, in Bland, our Supreme Court held, “Proximately causing and personally inflicting harm are two different things.” (People v. Bland, supra, 28 Cal.4th at p. 336.) Here, the jury was instructed pursuant to CALJIC No. 9.38 that if, under circumstances or conditions likely to produce great bodily harm or death, defendant willfully caused or as a result of criminal negligence permitted Ms. Garcia’s demise, he was guilty of elder abuse resulting in death. As a result, the jurors need not have found he acted alone to have found his acts or negligence were the proximate cause of Ms. Garcia’s death. If the jurors improperly limited their discussion of what constitutes proximate cause, it would not have found defendant caused Ms. Garcia’s death. Further, deoxyribonucleic acid samples from Ms. Garcia and defendant were found on his shoes. As a result, any error in defining the term “proximate cause” was harmless beyond a reasonable doubt. (People v. Bland, supra, 28 Cal.4th at p. 338; People v. Catlin, supra, 26 Cal.4th at p. 157.)
Second, defendant argues there is insufficient evidence to support his burglary conviction. In reviewing a challenge to the sufficiency of the evidence, we apply the following standard of review: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Carter (2005) 36 Cal.4th 1114, 1156; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Valdez (2004) 32 Cal.4th 73, 104; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Our Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
Defendant argues that because he was given permissive entry by Ms. Garcia, he had no felonious intent upon entry. However, our Supreme Court has held: “The crime of burglary... requires only an entry with the requisite intent; the entry need not be accomplished by force.” (People v. Wallace (2008) 44 Cal.4th 1032, 1060; original italics see also § 459; 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, § 120, p. 151.) Defendant was present in the residence over 40 minutes. Defendant refused entrance to his companions. Moreover, defendant was in possession of guns stolen from Ms. Garcia’s residence within hours of her murder. While that fact alone is not determinative of guilt, it provides circumstantial evidence of defendant’s intent to enter the residence to steal. (See People v. Najera (2008) 43 Cal.4th 1132, 1141; People v. Yeoman (2003) 31 Cal.4th 93, 131 [common sense justified the conclusion that the defendant’s possession of the victim’s recently stolen property tended to show he was guilty of robbery in view of corroborating evidence].) The jury found that defendant committed grand theft of a firearm. Substantial evidence supported defendant’s burglary conviction.
Third, following our request for further briefing, the Attorney General argues that the trial court should have imposed two additional section 1465.8, subdivision (a)(1) court security fees. We agree. The trial court imposed only one section 1465.8, subdivision (a)(1) court security fee. The trial court should have imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to each count for which defendant was convicted. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) Therefore, two additional section 1465.8, subdivision (a)(1) fees shall be imposed. The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modification we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
The judgment is modified to include two additional $20 court security fees pursuant to Penal Code section 1468.5, subdivision (a)(1). Upon remittitur issuance, the clerk of the superior court is directed to prepare an amended abstract of judgment and forward a copy to the California Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J. KRIEGLER, J.