Opinion
G058071
01-13-2021
THE PEOPLE, Plaintiff and Respondent, v. JAVIER GUADALUPE CARDENAS, Defendant and Appellant.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 18WF2584) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Javier Guadalupe Cardenas of first degree burglary and other felonies. The jury also found true the sentence enhancement allegation that a nonaccomplice was present during the commission of the first degree burglary pursuant to Penal Code section 667.5, subdivision (c)(21) (section 667.5(c)(21)). The court sentenced him to four years in state prison.
Defendant contends there was insufficient evidence to support the jury's true finding on the section 667.5(c)(21) enhancement, and the prosecution presented an incorrect legal theory to the jury. We disagree and affirm.
FACTS
The Residences at Bella Terra (Residences) is an apartment complex with 467 apartment units on five floors. There are six entrance doors around the complex that can only be opened with a key fob, which are only issued to people who have signed a lease for an apartment. A person without a key fob can only enter the building during business hours, and must walk through the leasing office and main lobby to reach the hallways where apartments are located.
O.M. is a maintenance worker at the Residences. During business hours, he was fixing a microwave in a first floor apartment and left a maintenance cart with his tools and laptop computer in the hallway next to the apartment's entry door. While he was in the apartment, he received a call from his supervisor warning him two men had been seen "looking through cars" in the parking lot and were headed his way.
O.M. walked out of the apartment and heard the mailroom door close. The mailroom was located next to the apartment and had a door which exited outside the building. O.M. looked through the mailroom door and saw defendant and another man walking outside of the building. Defendant was carrying one of O.M.'s tools.
O.M. followed the two men outside and asked defendant to return the tool. Defendant complied and O.M. returned inside only to realize his laptop computer was missing. He ran back outside and yelled "I need my laptop back," but defendant and the other man crossed the street to a nearby shopping center. Defendant and the other man were arrested a short time later and had O.M.'s laptop in their possession.
DISCUSSION
1. Section 667.5(c)(21) Enhancement
A person is guilty of first degree burglary if they enter an "inhabited dwelling" with the intent to commit a felony. (Pen. Code, §§ 459, 460, subd. (a).) Section 667.5(c)(21) was added to the Penal Code after the enactment of Proposition 21 in 2000. It provides that first degree burglary is a violent felony if "it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." (§ 667.5(c)(21).)
Defendant contends he never entered a "residence" within the meaning of section 667.5(c)(21), and the enhancement cannot apply because O.M. was inside the apartment when the theft occurred. "Defendant presents the question as a lack of substantial evidence; however, his argument is that the undisputed evidence is insufficient as a matter of law to support the enhancement pursuant to section 667.5, subdivision (c)(21). The legal sufficiency of undisputed evidence to support a conviction is a question of law, which we review de novo. [Citations.]" (People v. Harris (2014) 224 Cal.App.4th 86, 89 (Harris).)
The parties have identified three cases which bear on the question presented in this case. Defendant relies on People v. Singleton (2007) 155 Cal.App.4th 1332 (Singleton). In Singleton, the victim arrived at his apartment building and saw the defendant's car parked outside. Because the defendant was a former roommate who had recently been asked to move out, the victim decided to wait outside.
The victim's apartment was on the third floor and was reached via a staircase, which led to a hallway along the outside of the building. Access to the hallway was "restricted by a locked gate on the stairs." (Singleton, supra, 155 Cal.App.4th at p. 1335.) The victim climbed the stairs, passed through the locked gate, and waited "outside the apartment . . . down the hall, around the corner . . . ." (Id. at p. 1337.) The defendant emerged carrying a duffel bag filled with the victim's belongings, and was later convicted of first degree burglary with the section 667.5(c)(21) enhancement.
In ruling the victim was not present in the residence during the burglary, for purposes of section 667.5(c)(21), the Court of Appeal explained "[t]he plain meaning of 'present in the residence' is that a person, other than the burglar or an accomplice, has crossed the threshold or otherwise passed within the outer walls of the house, apartment, or other dwelling place being burglarized." (Singleton, supra, 155 Cal.App.4th at p. 1337.) The Singleton court further explained, "'[t]he threshold line of the building is located at the doorways into the apartments. One who stands on the stairway would not be considered "inside" the building under ordinary parlance.' [Citation.]" (Ibid.)
The Singleton court then observed the drafters of Proposition 21 used the term "residence," rather than "inhabited dwelling" in section 667.5(c)(21). (Singleton, supra, 155 Cal.App.4th at p. 1338.) The court explained the term "'inhabited dwelling'" had developed a specialized meaning in the context of burglary and "'a temporary place of abode, such as a weekend fishing retreat [citation], a hospital room [citation] or even a jail cell [citation], may qualify.' [Citation.]" (Ibid.) The court reasoned the use of "residence" in the enhancement "strongly indicat[ed] the term was intended to refer to a location different than the broadly interpreted 'inhabited dwelling.'" (Id. at p. 1339.) The court concluded: "we cannot ascribe to the commonplace term 'residence' the broad, technical meaning given by case law to 'inhabited dwelling.' It would be unreasonable to find the voters understood 'present in the residence' to apply when a person was standing in the hallway, outside an apartment unit." (Ibid.)
The Attorney General relies on Harris and People v. Debouver (2016) 1 Cal.App.5th 972, 975 (Debouver), both of which found Singleton distinguishable.
In Harris, the victim lived in a house with an attached garage. The garage had been converted into a guest room and shared a wall with the house, but it did not have an interior door to the house. The defendant broke into the converted guest room, but fled when the victim woke up in the main residence and yelled at him.
In affirming the jury's true finding on the section 667.5(c)(21) enhancement, the court determined the converted guest room was part of the residence, because it shared a roof and was part of a "contiguous structure" with the main house. (Harris, supra, 224 Cal.App.4th at p. 90.) The court then explained the victim was present in the residence for the purposes of section 667.5(c)(21), though he remained in the main house during the burglary. (Harris, at p. 90.) The court distinguished Singleton, because "[h]ere . . . there was no failure by the victims to 'cross[] the threshold or otherwise pass[] within the outer walls of the house, apartment, or other dwelling place being burglarized.' [Citation.]" (Ibid.)
Further, the court explained the purpose of the section 667.5(c)(21) enhancement was based on the unusual dangers presented by the burglary of a home when a victim is present. (Harris, supra, 224 Cal.App.4th at p. 91.) The court reasoned though the victims were somewhat protected by the interior wall between the converted room and main house "there was an intruder in their home who had entered their dwelling just feet from where they slept." (Ibid.) Thus, the increased danger justified "the additional sanctions found in [section 667.5(c)(21)]." (Ibid.)
In Debouver an apartment building manager caught the defendant breaking into cars in the "secured subterranean garage." (Debouver, supra, 1 Cal.App.5th at p. 975.) The defendant argued, based on Singleton, the garage was not a residence within section 667.5(c)(21). The Court of Appeal followed the analysis in Harris and concluded the garage was part of the residence of the apartment building because it "was an integrated part of the apartment complex and shared the same roof." (Debouver, at p. 982.)
This case is similar to Harris and Debouver, and distinct from Singleton. Here, the hallway was integrated into the outer walls of the building and shared a common roof like the garage in Debouver. And unlike the victim in Singleton, O.M. crossed the outer threshold of the building and was present inside the apartment. Further, like the victims in both Harris and Debouver, and unlike the victim in Singleton, O.M. was in close proximity to the theft as his cart was parked right outside the apartment entry door. Therefore, we conclude the section 667.5(c)(21) applied as a matter of law.
Defendant argues Debouver was incorrectly decided because it ignored the statutory analysis of Singleton and would lead to absurd results. Not so.
Singleton held the broadly defined "inhabited dwelling" of first degree burglary is not necessarily equivalent to the term "residence" for the purposes of section 667.5(c)(21). Singleton did not hold there could be no overlap between "inhabited dwelling" and "residence," nor that an apartment building could not be a residence. Instead, based on the specific facts presented, Singleton held a victim was not present in a particular apartment when he was "outside the apartment . . . down the hall, around the corner . . . ." (Singleton, supra, 155 Cal.App.4th at p. 1337.) Singleton simply did not speak to the specific facts of Debouver or this case.
The Attorney General cites People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1107 for the proposition that "[c]ourts have construed the terms 'residence' and 'inhabited dwelling house' to have equivalent meanings. [Citations.]" We are not persuaded because Rodriguez was not discussing section 667.5(c)(21) and was issued before Proposition 21 was enacted.
Defendant also asserts the holding in Debouver leads to the absurd result that "every entry into an apartment building with the intent to steal" would be a violent felony, because there is bound to be someone inside some part of the apartment building. However, those specific facts were not present in Debouver, and they are not present here. As discussed, the alleged victims here and in Debouver were in close proximity to the theft, hence the rationale for increased punishment under section 667.5(c)(21) applies.
2. Incorrect Legal Theory
During rebuttal argument, the prosecutor told the jury the verdict forms referred to the nonaccomplice present for the purposes of the section 667.5(c)(21) enhancement as "John Doe." The prosecutor explained the law recognized there was an increased danger in a burglary when a victim is present during the burglary because the victim might want to "protect their own property and . . . use violence against this trespasser." The prosecutor continued "what this specifically refers to is, you have [O.M.], who is there," and therefore O.M. could have used force to stop defendant during the theft. The prosecutor then explained: "And that's why the law talks about 'John Doe.' We don't want to list him in a public document; his name, for his privacy. But he is present, as well as 95, 96 percent of all of other residents that are there as well."
Defendant highlights only the sentence with the phrase "But he is present, as well as 95, 96 percent of all other residents" and argues the prosecutor presented the jury with the incorrect legal theory they could find the section 667.5(c)(21) enhancement to be true based on other residents (not O.M.) being present in the building. We disagree.
"[P]resenting a jury with a criminal case premised on an incorrect legal theory usually does require reversal." (People v. Morales (2001) 25 Cal.4th 34, 42 (Morales).) However, a case can only be premised on a legally incorrect theory if it is presented by the court, through instructional error, to the jury. (Ibid.) Without improper instruction from the court, "[t]he prosecutor arguably misstated some law, but such an error would merely amount to prosecutorial misconduct [citation] during argument, rather than trial and resolution of the case on an improper legal basis." (Id. at p. 43.) Further: "When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court's attention by a timely objection. Otherwise no claim is preserved for appeal. [Citation.]" (Id. at pp. 43-44.)
Here, defendant's argument is based solely on the comments of the prosecutor and therefore can only amount to a claim of prosecutorial misconduct. Because his counsel made no objection to the comment during the trial, the issue is forfeited on appeal. (Morales, supra, 25 Cal.4th at p. 44.)
In his reply brief, defendant attempts to avoid forfeiture by arguing the court erroneously instructed the jury. However, we will not consider the argument raised for the first time in the reply brief. (People v. Zamudio (2008) 43 Cal.4th 327, 353-354; People v. Bonilla (2007) 41 Cal.4th 313, 349-350.)
DISPOSITION
The judgment is affirmed.
THOMPSON, J. I CONCUR: GOETHALS, J. Aronson, J., concurring:
I agree with the majority's decision to affirm the judgment. I write separately because I disagree with part of their analysis in rejecting defendant Javier Guadalupe Cardenas's contention insufficient evidence supported the violent felony enhancement under Penal Code section 667.5, subd. (c)(21). I concur, however, with the majority's reliance on People v. Debouver (2016) 1 Cal.App.5th 972 (Debouver) in rejecting Cardenas's challenge.
All further statutory references are to the Penal Code. --------
"First degree burglary where a nonaccomplice third party is present was elevated to a violent felony within the meaning of section 667.5, subdivision (c), in 2000 as part of Proposition 21. [Citation.] 'Occupied burglary plainly presents a potential for violence and consequently merits enhanced punishment.' [Citations.] It 'does not require the use or threat of force. Indeed, the crime does not require any contact between the defendant and the occupant. The mere presence of a nonaccomplice in the dwelling is sufficient. Further, knowledge that a dwelling is occupied is not an element of occupied burglary. Thus, a burglary may qualify as an occupied burglary under . . . section 667.5[, subdivision](c)(21) even though the defendant had no contact with the occupant and thought no one was present in the home during the burglary.' [Citation.]" (People v. Munguia (2016) 7 Cal.App.5th 103, 110 [discussing the meaning of "during the commission of the burglary"].)
Relying on People v. Singleton (2007) 155 Cal.App.4th 1332 (Singleton), Cardenas argues the undisputed evidence shows he never entered a residence when the theft occurred. In Singleton, the appellate court reversed a burglary violent felony enhancement because the victim was at all times in a hallway that ran along the outside of his apartment building, and not in his apartment, when the break-in occurred. The Legislature's use of the phrase "'present in'" as opposed to "'near'" the residence meant that "the nonaccomplice cannot merely be near, at, or around the residence, but must be in the residence for the purposes of the statute." (Id. at p. 1338.)
Singleton "interpreted the meaning of 'present in the residence' under section 667.5, subdivision (c)(21)," and "found that '[s]ection 667.5, subdivision (c)(21) is plain on its face, and it requires a person, other than an accomplice, be "present in the residence during the commission of the burglary." The plain meaning of "present in the residence" is that a person, other than the burglar or an accomplice, has crossed the threshold or otherwise passed within the outer walls of the house, apartment, or other dwelling place being burglarized.'" (Munguia, supra, 7 Cal.App.5th at p. 113.) Simply put, in Singleton, the tenant's presence outside of the apartment exterior common hallway and "outside an apartment unit" was not "presence" in the residence as required under the statute. (Singleton, supra, 155 Cal.App.4th at pp. 1338-1339, italics added.)
The majority distinguishes Singleton for three reasons: (1) the maintenance worker was inside the apartment unit, but the nonaccomplice in Singleton remained outside; (2) unlike the nonaccomplice in Singleton, the maintenance worker was "in close proximity to the theft as his cart was parked outside the apartment entry door"; and (3) "the hallway was integrated into the outer walls of the building and shared a common roof." (Maj. opn. at pp 5-6.)
The majority correctly notes the nonaccomplice in Singleton remained down the common hallway during the burglary, but here the nonaccomplice was inside the apartment when Cardenas stole tools from a cart in the hallway. This distinction is meaningless, however. The enhancement applies only when both the defendant and the nonaccomplice are "'present in the residence during the commission of the burglary.'" (See Munguia, supra, 7 Cal.App.5th at p. 113 [nonaccomplice third party was in the residence before defendant's cohorts completed the burglary].) Thus, the issue is how to define "residence" as used in section 667.5. If the definition of residence applies only to an apartment unit and not a common hallway, as Cardenas contends, the enhancement does not apply because Cardenas never entered the apartment. The majority's distinction simply does not address Cardenas's argument.
The close proximity of the maintenance worker to the theft is also unhelpful. If Cardenas's interpretation of Singleton is correct and residence is defined as an apartment unit, the maintenance worker's proximity to Cardenas is irrelevant. They both must be in the residence, as expressly required under the statute. The enhancement applies whether or not the third party comes near the burglar. Indeed, the enhancement applies to the burglary of a mansion even if the nonaccomplice is in a distant wing far removed from the criminal intruder. Simply put, the enhancement "'does not require any contact between the defendant and the occupant.'" (Munguia, supra, 7 Cal.App.5th at p. 110.)
The majority's third reason, which I find convincing, relies on People v. Harris (2014) 224 Cal.App.4th 86 (Harris) and People v. Debouver, supra, 1 Cal.App.5th 972.
In Harris, the defendant entered a "guestroom" in a "converted garage" while the victims were in their bedroom in the "main house." (Harris, supra, 224 Cal.App.4th at p. 89.) The guestroom could not be accessed from within the main house but only by an exterior door. (Id. at p. 90.) "[T]he guest quarters were physically attached to the main residence, were covered by the same roof, and had been used on occasion by the victims as their bedroom. The room lacked cooking facilities, which made it dependent upon the rest of the house. In construction and use, the guestroom was a part of the main residence." (Ibid.) Relying on Singleton, the defendant claimed the main house and the guestroom were "like separate units in an apartment house." (Ibid.) The court rejected this argument and held that "residence" as used in section 667.5, subdivision (c)(21) "extend[s] to rooms that do not offer access but adjoin, share a common roof, and are functionally connected." (Id. at p. 91.)
In Debouver, the issue was whether a secured underground parking garage shared by all the tenants in an apartment building was part of the "residence." (Debouver, supra, 1 Cal.App.5th 981-982.) The court held it was because "the apartment units and the secured underground garage shared a common roof and were an integrated part of the apartment complex. '[A] structure is part of a[] . . . dwelling . . . "functionally interconnected with and immediately contiguous to other portions of the house."'" (Id. at p. 981.) The court concluded that when the defendant was caught by the apartment complex manager breaking into parked cars in the garage, he was in a "residence" where a person, i.e., the manager, was "present." (Id. at p. 982.)
Singleton noted a "'residence' is a term unused in other statutory references to burglary, strongly indicating the term was intended to refer to a location different than the broadly interpreted 'inhabited dwelling'" used in the burglary statute (Singleton, supra, 155 Cal.App.4th at p. 1339.) Consequently, Singleton explained it could not give "the commonplace term 'residence' the broad, technical meaning given by case law to 'inhabited dwelling'" and therefore concluded third party nonaccomplice standing in the hallway was not "'present in the residence'" because he was "outside an apartment unit. (Ibid.)
Singleton's point is well-taken, but I am persuaded by the analysis in Debouver. The common hallway in Singleton "[ran] along the outside of the building, providing access from the stairs to the apartment." (Singleton, supra, 155 Cal.App.4th at p. 1335.) In contrast, the apartment building in the present case was a functionally interconnecting building with apartments continuous to one another. (Debouver, supra, 1 Cal.App.5th at p. 982 [secured garage an integral part of the apartment complex and shared the same roof].) Singleton's more narrow interpretation of residence could undermine the drafters' intent to deter the potential for a violent confrontation between a burglar and a third party that could take place in an interconnected apartment complex, such as a hallway or laundry room. In other words, an apartment building with adjoining apartments, a common roof, and restricted access is tantamount to a single residence with interconnecting rooms and common areas, perhaps similar to a mansion. I therefore concur in the majority's decision to affirm the judgment.
ARONSON, ACTING P. J.