Opinion
E066169
04-05-2018
THE PEOPLE, Plaintiff and Respondent, v. ARNOLD JAMES COLLINS, Defendant and Appellant.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV1402377) OPINION APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed. Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant Arnold James Collins (defendant) appeals his conviction and 19-year sentence for first degree residential burglary under Penal Code section 459 on the contention that removing a window screen and unsuccessfully attempting to open a closed window does not constitute an entry for purposes of the statute. The Supreme Court case of People v. Valencia (2002) 28 Cal.4th 1 (Valencia), disapproved of on other grounds by People v. Yarbrough (2012) 54 Cal.4th 889, which is factually identical to this matter, holds just the opposite. For this reason, we affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Ricardo Delgado, Jr., was asleep on a couch near the front window of his parents' home on June 13, 2014, at about 2:00 a.m. when he was awoken by a loud banging on the window. Crouching down and peeking out from behind a curtain, Delgado, Jr., could see a man trying to pry open the window with a screwdriver a few feet away. The screen which had been covering the window was removed. Delgado, Jr., ran to alert his father, Delgado, Sr., who grabbed a knife. When Delgado, Sr., ran outside, he saw a man running away. Video footage from a security camera at the Delgado house showed a man later identified as defendant removing the window screen that night.
Defendant was subsequently charged with and found guilty of first degree burglary, Penal Code section 459. The jury found true the allegations that persons other than an accomplice were present in the house at the time of the offense. Defendant received sentence enhancements for one prior serious felony conviction under Penal Code section 667, subdivision (a)(1), and two prior prison terms under Penal Code section 667.5, subdivision (b). He was sentenced to a total term of 19 years in prison.
Defendant now appeals the conviction and seeks to have the judgment modified to a lesser charge of attempted burglary.
III.
DISCUSSION
Defendant argues there was insufficient evidence to convict him under Penal Code section 459 because removing a window screen at his victim's house, without opening the window behind it or entering the house, does not meet the entry requirement of first degree burglary. He argues that, at most, he is guilty of attempted burglary. On appeal, we review the record to determine whether " 'a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Perez (2010) 50 Cal.4th 222, 229, citing People v. Jones (1990) 51 Cal.3d 294, 314.) We presume " 'the existence of every fact the trier [of fact] could reasonably deduce from the evidence,' " and view the record in the light most favorable to the judgment below. (Perez, at p. 229.)
Penal Code section 459 states: "Every person who enters any house, room, apartment . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." In California, the elements of first degree burglary are: "(1) entry into a structure currently being used for dwelling purposes and (2) with the intent to commit a theft or a felony." (People v. Sample (2011) 200 Cal.App.4th 1253, 1261.) Defendant does not dispute for purposes of his appeal that the Delgado house was being used as a dwelling, or that he intended to commit a felony. His appeal focuses on whether the penetration of the air space between a window screen and a closed window can constitute "entry" sufficient to convict under the statute. Thus, our analysis will be limited to this issue.
It has long been the law in California that even the slightest partial entry of any kind into a premises with the requisite intent is necessary to accomplish a burglary. (See, e.g., People v. Walters (1967) 249 Cal.App.2d 547, 551.) In Valencia, supra, 28 Cal.4th 1, the California Supreme Court addressed the very issue raised by defendant; i.e., whether an entry sufficient for burglary is accomplished by removing a window screen when the defendant never succeeds in opening the window or getting into the house. In Valencia, the defendant removed a screen covering his victim's bathroom window, but was unable to pry open or pass through the closed window behind the screen. (Id. at pp. 3-4.) The Valencia court focused on whether a window screen was part of a building's outer boundary, which it defined as "any element that encloses an area into which a reasonable person would believe that a member of the general public could not pass without authorization," and concluded that it clearly was. (Id. at p. 11.) Analyzing whether such an interpretation achieved the goals of the Penal Code section 459, the Valencia court found that such an entry violated the possessory interest of the occupants, and created the potential for danger to personal safety, which is what the burglary statute was intended to prevent. (Id. at pp. 12-13.) Thus, "penetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute even when the window itself is closed and is not penetrated." (Id. at p. 13.) As defendant has recognized, recent case law out of the Third and Fifth Appellate Districts follow the Valencia decision. (See People v. Goode (2015) 243 Cal.App.4th 484; People v. McEntire (2016) 247 Cal.App.4th 484.)
There is no factual difference between defendant's case and the Valencia case. Both involve a removal of a window screen and attempted prying open of the window behind it without penetration past the window. We find no basis for distinguishing this case from Valencia, and are bound to follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).) In keeping with the Valencia holding, we conclude that defendant's actions were an entry for purposes of Penal Code section 459, and there was substantial evidence to support defendant's conviction for first degree burglary.
The cases cited by defendant offer no basis for deviating from this squarely on point Supreme Court case. First, People v. Garcia (2016) 62 Cal.4th 1116 (Garcia), a case involving a defendant who entered a shop, then entered a back bathroom and raped the shop clerk, addressed the issue of whether defendant could be charged with separate burglary counts for each entry. (Id. at p. 1122.) The Garcia court found that the defendant's entry into the bathroom, which was not locked and could be accessed by the public, did not violate a separate possessory interest or invade a separate expectation of security. (Id. at pp. 1132-1133.) As such, there could be only one count of burglary. (Id. at p. 1133.) Garcia is not only factually distinguishable from this case, but is also consistent with Valencia in its focus on breach of possessory interest and violation of a person's reasonable expectation of security and privacy required for an entry. (Garcia, at pp. 1125-1126.)
People v. Gauze (1975) 15 Cal.3d 709 also has no impact on our decision. Like Garcia, Gauze is factually distinguishable, because it dealt with a defendant who entered his own residence. (Gauze, at p. 715.) The Gauze court recognized that Penal Code section 459 sought to protect against the inherent danger of entering another person's premises without permission, and found no such risk of danger existed when the defendant entered his own property. (Id. at p. 716.) Although the Gauze court reversed the defendant's burglary conviction, the decision turned on whether there was an invasion of possessory interest, and is in accord with the holding in Valencia. (Gauze, at pp. 714, 717.)
We find no need to address defendant's arguments regarding the interpretation of Penal Code section 459 in light of the Supreme Court's holding in Valencia on facts virtually identical to those we consider today. It would be inappropriate for this court to redetermine Valencia's holding. (Auto Equity, supra, 57 Cal.2d at p. 455.)
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. FIELDS
J.