Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super.Ct.No. INF48411 Richard A. Erwood, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Douglas Danzig and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST J.
A jury found appellant and defendant Jose Manuel Castro guilty of two counts of burglary (Pen. Code, § 459, counts 1 & 3), and two counts of committing a lewd act upon a child under 14 years old. (§ 288, subd. (a), counts 2 & 4.) The jury also found true the enhancement allegations that, as to counts 2 and 4, defendant was a stranger to the child (§ 1203.066, subd. (a)(3)), and he engaged in substantial sexual conduct with the child. (§ 1203.066, subd. (a)(8).) In addition, as to count 4, the jury found true the allegation that defendant entered an inhabited dwelling with the intent to commit a violent sexual offense specified in section 667.61, subdivision (c), within the meaning of section 667.61, subdivision (d)(4). However, as to count 2, the jury found this same allegation not true, but did find true the allegation that defendant committed a violent sex offense during the commission of a burglary, within the meaning of section 667.61, subdivision (e)(2). The trial court sentenced defendant to state prison for 25 years to life on count 4 and a consecutive term of 15 years to life on count 2. The court stayed the sentences on the remaining counts under section 654.
All further statutory references will be to the Penal Code, unless otherwise noted.
On appeal, defendant contends that: 1) there was insufficient evidence to support the burglary conviction in count 1; and 2) the minute order should be corrected to reflect that, as to count 2, the jury found not true the allegation that he entered the house with the intent to commit a violent sex offense. The People correctly concede that the minute order should be amended. Otherwise, we affirm.
FACTUAL BACKGROUND
On August 24, 2004, at approximately 10:30 p.m., defendant knocked, shook the doorknob, and rang the doorbell at Lillian Casillas’s home in a housing development called Tierra del Sol. Her door was locked. When Casillas looked out the peephole of her front door, she did not see anyone. As she turned around to go back into the bedroom, she heard the same sounds, looked out the peephole again, and saw defendant standing outside her door. She did not answer the door and watched defendant walk away. He skipped the house right next to hers and walked toward the victim’s home. Casillas lost sight of him for a minute, but then saw him go to the home of another neighbor, David Cruz.
Defendant rang the doorbell twice at Cruz’s home. When Cruz answered the door, defendant was pacing back and forth and said he was looking for “Randy” and “Christina.” Defendant told Cruz that he used to work at that housing development, and Cruz figured out that defendant was looking for Christina and Brent—two individuals who worked as field representatives during the construction of the homes in the housing development. Cruz offered to give defendant their phone numbers. He closed the door to go look for the numbers and write them down on a piece of paper. When he returned with the numbers two minutes later, defendant was gone. Cruz went outside to look for defendant, but did not find him. Several minutes later, Cruz and his father saw defendant exit the victim’s home. Cruz asked defendant if he still needed the phone number. Defendant said “yes,” grabbed the paper, and got into his car. Defendant drove away, drove onto a dead end street, turned around, “peeled out,” and drove off. Cruz saw Casillas, who asked him to go over to her house to talk about defendant. As they talked in front of her house, they saw defendant walking down the street. Cruz asked defendant what was going on, and defendant responded, “‘Just kickin’ it.’” Defendant then walked right up to the victim’s driveway. Cruz called the police.
The victim, who was 10 years old in August 2004, was sleeping in her bedroom. When she woke up, she found defendant orally copulating her. Her panties were pulled down to her knees. She was scared, so she left her bedroom to go to her parents’ bedroom. Defendant asked the victim to go with him, but she said “no.” The victim went to her parents’ bedroom, crying uncontrollably, and told them what happened. Her father got dressed and left the house. He saw Cruz and his father outside and asked them if they had seen anyone come out of his house. They pointed to defendant, who was crossing the street. The victim’s father ran after defendant and asked him to stop three times. The father asked what he had been doing at his house, and defendant said, “it was lies.” The father later recalled seeing defendant once before, when a construction supervisor gave defendant a key to the victim’s house to let her family inside to see the house. At trial, one of the home builder’s project managers testified that defendant worked for the home builder as a day laborer for six months, on and off. Defendant worked at the Tierra del Sol site 45 days before the incident.
The police interviewed defendant three times concerning the incident. He denied any wrongdoing at the first two interviews. During the third interview, defendant admitted that he went into the victim’s home and licked her. Defendant said that the door to the house was open, so he went inside. He found the victim’s bedroom, pulled the victim’s pants down, and orally copulated her while she was sleeping. Defendant said he left the house, but then went back. He said that the first time he went into the house, there was no specific reason he went into the victim’s bedroom. When later asked why he went into the house the second time, defendant said, “For the same reason I—same reason I went in the first time.” Defendant said he went into the same bedroom, and the victim was still asleep. He orally copulated her again, and the victim woke up this time.
ANALYSIS
I. There Was Sufficient Evidence to Sustain Defendant’s Burglary Conviction in Count 1
Defendant was convicted of two counts of burglary—one for each time he entered the victim’s house. Defendant does not contest the second entry into the house (count 3). Rather, he argues that his burglary conviction in count 1 must be reversed because there was insufficient evidence that he had the intent to commit theft. He acknowledges the prosecution’s theory was that he was guilty of burglary because he entered with the intent to commit either a theft or a lewd act upon a child under 14 years old. However, he contends that, since the jury found not true the allegation that defendant entered an inhabited dwelling house with the intent to commit a violent sexual offense, within the meaning of section 667.61, subdivision (d)(4), as to count 2, the jury could only have found defendant guilty of burglary in count 1 based upon an intent to commit theft. He argues that there was no evidence of an intent to steal. He simply claims that he had no specific intent when he entered the house. Moreover, defendant contends that once the burglary conviction in count 1 is reversed, the sentence in count 2 should be reversed, since it was based on him committing the crime during the course of a burglary. We disagree.
A. Standard of Review
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) “Where, as here, the jury’s findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, ‘but our opinion that the circumstances also might reasonably be reconciled with a contrary finding does not render the evidence insubstantial. [Citation.]” (People v. Earp (1999) 20 Cal.4th 826, 887 (Earp).)
B. There Was Sufficient Evidence That Defendant Had the Intent to Commit Theft or a Lewd Act the First Time He Entered the House
At the outset, we note that it is well settled that “an inherently inconsistent verdict is allowed to stand; if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both. [Citations.] . . . The jury may have been convinced of guilt but arrived at an inconsistent acquittal or not true finding ‘through mistake, compromise, or lenity . . . .’ [Citation.] Because the defendant is given the benefit of the acquittal, ‘it is neither irrational nor illogical to require [him] to accept the burden of conviction on the counts on which the jury convicted.’ [Citation.]” (People v. Santamaria (1994) 8 Cal.4th 903, 911; see also People v. Lopez (1982) 131 Cal.App.3d 565, 570-571.) Therefore, just because the jury here found not true the allegation in count 2 that defendant entered the victim’s house with the intent to commit a violent sexual offense, it does not necessarily follow that the jury found defendant guilty of burglary in count 1 based upon the intent to commit theft. The jury could have found defendant guilty of burglary based upon the intent to commit a lewd act.
In any case, burglary requires “an entry into a specified structure with the intent to commit theft or any felony. [Citations.]” (People v. Tafoya (2007) 42 Cal.4th 147, 170; § 459.) “[T]he intent required for robbery and burglary is seldom established with direct evidence but instead is usually inferred from all the facts and circumstances surrounding the crime. [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 643.) Here, the prosecution argued that defendant entered the victim’s home the first time with the intent to commit a theft or a lewd act on a child under 14 years old. The court instructed the jury that evidence of an entry with the intent to commit a theft and/or a lewd act would support a burglary conviction, that defendant did not need to actually commit the theft or lewd act to be convicted, and that the jury did not have to unanimously agree on which intent defendant had upon entry. There was sufficient evidence to support either theory.
The evidence amply supported a finding that defendant entered the victim’s home with the intent to commit theft. Defendant was familiar with the area since he had worked intermittently for six months at the housing development where the victim lived. The evidence shows that, late at night on August 24, 2004, defendant knocked on the doors, tried the doorknobs, and rang the doorbells of several houses, apparently to see if anyone was home. Defendant had an excuse prepared, in case anyone answered the door. When Cruz answered the door, defendant said he was looking for “Randy” or “Christina.” He was clearly not interested in finding or contacting them, as shown by his hasty departure from Cruz’s front door, after Cruz left to get him the phone numbers. Instead of waiting to get the numbers, defendant moved on to the victim’s house. When he found that door unlocked, he seized the opportunity and went inside. Although defendant did not take anything, but instead molested the victim, he did have a motive to steal. The record shows that he was a heavy drug user, who only had an eighth grade education, and who had no apparent income at the time of the incident. Accordingly, the prosecution argued that defendant was a drug user with no income, who needed money to pay for his drugs. Defendant attempts to argue that there was no evidence of his intent to steal, pointing out that he did not have “burglar tools” or bags to carry off any loot, that he would have presumably gone to another room, rather than a bedroom, and that he did not take anything. However, defendant did not need “burglar tools,” since he was looking for a house that was unlocked. Moreover, he could have intended to take only jewelry, which would typically be found in a bedroom, and which would not require loot bags. Furthermore, defendant could have entered the house with one intent (to steal), and then changed his mind and decided to commit a lewd act instead. Thus, the circumstances reasonably justify the finding that defendant initially entered the victim’s house with the intent to steal. (Earp, supra, 20 Cal.4th at p. 887.)
The evidence also amply supported a finding that defendant entered the victim’s home with the intent to commit a lewd act. Defendant knew where the victim lived. When the victim and her family were buying their new home, they went to check on it, and defendant was the person who let her and her family into the home. Defendant was familiar with the layout of the house from his work with the developer; he had been in that house before, and he knew exactly where the victim’s bedroom was located. Although defendant first told the investigator that he had no specific reason for entering the victim’s bedroom, he later said that he went back into the house the second time “[f]or the same reason [he] went in the first time.” Defendant admitted that he went in the house the first time and orally copulated the victim, and that he went into the house the second time and tried to “do the same process.” These circumstances reasonably justify the finding that defendant entered the house the first time with the intent to commit a lewd act. (Earp, supra, 20 Cal.4th at p. 887.)
Despite defendant’s characterization of his acts on the night of the incident as simply irrational and random, we cannot reverse “unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin, supra, 18 Cal.4th at p. 331, italics added.) Viewing the evidence in the light most favorable to the judgment, as we must, we conclude that there was sufficient evidence to support the burglary conviction in count 1. Accordingly, we reject defendant’s related contention that the sentence in count 2 should be reversed.
II. The Minute Order Should Be Corrected to Reflect the Jury’s Verdict
Defendant contends the minute order incorrectly reflects that the jury found true as to count 2 the allegation that he entered the home with the intent to commit a violent sex offense. The People concede that the minute order should be corrected.
The minute order states that the jury found true, as to count 2, the section 667.61, subdivision (c), and section 667.61, subdivision (e)(2), sentencing allegations. The jury did find true the section 667.61, subdivision (e)(2), allegation. However, the jury verdict form reflects that the jury found not true the allegation that defendant entered the home with the intent to commit a violent sex offense during the commission of the burglary, within the meaning of section 667.61, subdivision (d)(4). The oral transcript of the jury’s verdict is in accord. Thus, the minute order should be corrected to reflect the jury’s finding.
DISPOSITION
The minute order is modified to reflect that the jury found the allegation that defendant entered the home with the intent to commit a violent sex offense during the commission of the burglary, within the meaning of section 667.61, subdivision (d)(4), not true. Otherwise, the judgment is affirmed.
We concur: RAMIREZ P.J., McKINSTER J.