Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF153222. Patrick F. Magers, Judge.
Rex Williams, 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, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST J.
A jury found defendant and appellant Travare Monroe Grant guilty of one count of first degree burglary. (Pen. Code, § 459.) Defendant admitted that he had served two prior prison terms (§ 667.5, subd. (b)) for burglary convictions, and that he had one prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). The trial court sentenced him to a term of 14 years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends: 1) there was insufficient evidence to support his burglary conviction; 2) the trial court erred in denying his request for a Marsden hearing; and 3) the trial court erred in limiting his presentence conduct credits to 15 percent, under section 2933.1. We conclude there was sufficient evidence to support defendant’s conviction, and that the trial court properly limited his conduct credits. However, the People concede and, we agree, that the matter should be remanded so the trial court can hold a Marsden hearing. Thus, we reverse and remand with directions for the trial court to conduct a Marsden hearing.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTUAL BACKGROUND
On the morning of September 28, 2009, the victim, who was a retired police officer, was at his residence in Moreno Valley, when he heard the doorbell ring. He was in the bathroom and did not answer the door. About two minutes later, he went to the kitchen to make something to eat. He looked out the window, but did not see anybody at the front door. While he was fixing his meal, he saw an unknown male, in his backyard, walking toward the rear door of his residence. The man was about two feet from the residence. The victim was scared because his gate was locked, and no one was supposed to be in his backyard. He observed the man’s height, clothing, and nationality (African-American), but did not get a good look at his face. He quickly called 911. The victim kept his eye on the man while he was on the phone. The man walked toward the end of the residence, and the victim lost sight of him. After the victim walked to his bedroom to get a firearm, he heard sounds coming from the back of the residence, like somebody was trying to open or move something. After he heard the sounds, the victim peeked outside again, but nobody was there. However, he noticed a hole on the rear screen door, near the handle. The hole was not there the night before. The victim did not have any property taken from him.
Officers Mushinskie, Eckenrode, and Vasquez responded to the victim’s 911 call within five minutes. The victim gave the officers a description of the man he saw in his backyard. He also told the officers he saw fresh shoe prints in the dirt near the side of his residence.
Officer Mushinskie testified at trial that he looked around the victim’s residence to see if there were any signs of entry. He went in the backyard and saw a half-inch cut in the rear sliding screen door, just above the handle. He testified that the opening was consistent with somebody poking a screwdriver or other object through the screen. However, based on his inspection of the handle, it did not appear that anybody had actually broken into the screen door or opened it. Officer Mushinskie also observed shoe prints by the northeast gate in the backyard.
Officer Vasquez testified at trial that he spotted a man, whose clothing matched the victim’s description, walking southbound on Sunnymeadows Drive. Officer Vasquez parked his patrol car, approached the man, and asked him how he was doing. The man replied, “‘Fine.’” He said he was headed to the park to meet a friend. Officer Vasquez obtained the man’s consent to do a pat-down search, and he found a screwdriver tucked into the man’s waistband. Officer Vasquez asked about the screwdriver, and the man said he did “side jobs.” Officer Vasquez placed defendant in the backseat of his patrol unit, and the victim was brought to defendant to do an in-field identification. The in-field identification took place just a few minutes after the police had arrived at the victim’s residence. The victim identified defendant by his clothing as the person he saw in his backyard.
On cross-examination, defense counsel asked Officer Vasquez whether defendant had any kind of backpack or bag to hide stolen items. He said no. On redirect examination, Officer Vasquez was asked whether, in his training and experience, he saw people committing burglaries carrying backpacks. He said that usually juveniles who broke into places took backpacks with them. However, adults usually did not. Adults, many times, had somewhere they could hide the stolen items, like a vehicle or a field, or they would just take money or jewelry—things they could easily conceal.
Officer Eckenrode also testified at trial that he observed a hole in the victim’s rear sliding screen door, and that it looked like the hole was consistent with the head of a screwdriver. However, he said it could be consistent with other things, as well. Officer Eckenrode interviewed defendant at the police station after defendant waived his Miranda rights. Officer Eckenrode asked him if he, at any time, was in the victim’s backyard. Defendant said several times that he was never there. He asked defendant if he had jumped in any yards, and defendant denied doing so about 17 times. Officer Eckenrode asked defendant if anyone was chasing him, and defendant repeatedly said, “‘[N]o.’” Defendant told Officer Eckenrode he was on his way to the Moreno Valley Mall, and then to Riverside.
Miranda v. Arizona (1966) 384 U.S. 486 (Miranda).
At trial, a portion of defendant’s testimony from the preliminary hearing was read to the jury. At the preliminary hearing, defendant had testified that, on September 28, 2009, he was scared for his life because a car approached him, while he was walking on Dracaea Avenue, on his way to the mall. A person in the car asked him where he was from, and he said, “‘[N]owhere.’” Defendant continued walking. He saw the car do a U-turn, and then saw some “sparks hit the ground.” Defendant took off running. He said he tried to hide by “jumping walls” and going into people’s backyards. He said he jumped into about four or five different yards and tried two or three times to ring doorbells to see if he could use the phone and call for help. When defendant was asked if he came across the victim’s residence, he said, “I was in their backyard. I wasn’t running on the front street. I jumped the gate because they were coming after me in their car.” He said that after a while he just walked because he did not see them anymore. After going through a few backyards, he emerged on Sunnymeadows Drive and started heading toward the mall again. He further testified that he had never seen the car that was chasing him before, or the people in it, and that he was not a gang member. He also said he found the screwdriver on the street about 50 seconds before the police stopped him.
ANALYSIS
I. There Was Sufficient Evidence to Support the Burglary Conviction
Defendant argues that his burglary conviction was unsupported because there was no substantial evidence that he “penetrated the outer boundaries” of the victim’s residence, or that he had the intent to commit a theft. We disagree.
A. Standard of Review
“‘In reviewing the sufficiency of the evidence, we must draw all inferences in support of the verdict that can reasonably be deduced and must uphold the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 528.)
“The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]” (People v. Bean (1988) 46 Cal.3d 919, 932-933 (Bean).)
“‘Although the People must show that a defendant charged with burglary entered the premises with felonious intent, such intent must usually be inferred from all of the facts and circumstances disclosed by the evidence, rarely being directly provable. [Citations.] When the evidence justifies a reasonable inference of felonious intent, the verdict may not be disturbed on appeal. [Citations.]’ [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 462 (Price), superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161.)
B. The Evidence Was Sufficient to Show That Defendant Penetrated the Outer Boundary of the Victim’s Residence
A person is guilty of burglary if he enters any house or room with the intent to commit a theft or a felony. (§ 459.) Thus, the People must prove that: 1) the defendant entered a specified structure; and 2) when he entered the structure, he had the intent to commit theft or any felony. (See People v. Tafoya (2007) 42 Cal.4th 147, 170.)
Defendant first argues that there was no evidence he entered the victim’s residence. We disagree. “[A] burglary may be committed by using an instrument to enter a building—whether that instrument is used solely to effect entry, or to accomplish the intended larceny or felony as well.” (People v. Davis (1998)18 Cal.4th 712, 717.) Entry occurs within the meaning of burglary if any part of the defendant’s body or any instrument wielded by him penetrates the outer boundary of the building. (People v. Valencia (2002) 28 Cal.4th 1, 11 (Valencia); People v. Nible (1988) 200 Cal.App.3d 838, 843.) A window screen or screen door is clearly part of the outer boundary of a building for purposes of burglary. (Valencia, at p. 12; People v. Moore (1994) 31 Cal.App.4th 489, 490-492.) “The slightest entry is sufficient to constitute the crime of burglary, if it be with felonious intent.” (People v. Walters (1967) 249 Cal.App.2d 547, 551.) “The fact of entry may be established by circumstantial evidence. [Citation.]” (People v. Osegueda (1984) 163 Cal.App.3d Supp. 25, 32 (Osegueda).)
In Valencia, supra, 28 Cal.4th 1, the defendant removed a window screen from the victim’s residence with a screwdriver. (Id. at p. 3.) He then tried unsuccessfully to open the window itself. (Ibid.) The Supreme Court held that a window screen is clearly part of the outer boundary of a building, and penetration into the area behind a window screen constitutes entry for purposes of burglary. (Id. at pp. 12-13.)
In the instant case, the victim testified that he saw an unknown male, in his backyard, walking toward the rear door of his residence. The victim was afraid because no one was supposed to be in his backyard, since his gate was always locked. He heard sounds coming from the back of his residence, which sounded like someone was trying to open or move something. The victim subsequently noticed a hole above the handle on his rear screen door. The hole had not been there before. The victim subsequently identified defendant as the man he saw in his backyard.
Officer Mushinskie testified that he went in the victim’s backyard and saw a half-inch cut in the rear sliding screen door, just above the handle. He testified that the opening was consistent with somebody poking a screwdriver or other object through the screen. Officer Eckenrode similarly testified that the hole in the screen was consistent with the head of a screwdriver. When Officer Vasquez detained defendant, he found a screwdriver tucked into defendant’s waistband. Defendant told Officer Vasquez he had the screwdriver because he did “side jobs.” However, at the preliminary hearing, defendant said he found the screwdriver on the street about 50 seconds before the officer stopped him.
Viewing the evidence in the light most favorable to the prosecution, as we must, we conclude the circumstances reasonably justify the jury’s finding that defendant poked a screwdriver through the victim’s rear screen door, which constituted an entry into the victim’s residence.
C. The Evidence Was Sufficient to Show Defendant Had the Requisite Intent
Defendant further contends there was no evidence that he had the intent to commit a theft when he entered the victim’s residence. Again, we disagree.
“The determination of a defendant’s intent is a question for the trier of fact.” (Osegueda, supra, 163 Cal.App.3d at pp. Supp. 29-30.) This intent must usually be inferred from all of the facts and circumstances disclosed by the evidence. (Price, supra, 1 Cal.4th at p. 462.) “Burglarious intent can reasonably be inferred from an unlawful entry alone. [Citation.] Even if no crime be committed after the entry, circumstances such as flight after being hailed by an occupant of the building [citation], the fact that the building was entered through a window [citation] or through a doorway which previously had been locked [citations] without reasonable explanation of the entry, will warrant the conclusion by a jury that the entry was made with the intention to commit theft.” (People v. Jordan (1962) 204 Cal.App.2d 782, 786-787 (Jordan); see also, People v. Martin (1969) 275 Cal.App.2d 334, 339 (Martin).)
The evidence of defendant’s intent was circumstantial. When the totality of the circumstances of the instant case is considered, there was sufficient circumstantial evidence to justify the jury’s guilty verdict. The victim heard the doorbell ring. He did not answer the door. A few minutes later, he saw defendant in his backyard, walking toward the rear door of his residence. It was reasonable to infer that defendant rang the victim’s doorbell to see if anyone was home, and then went around to the rear of the residence, to avoid being observed, and poked the hole in the screen door to effectuate the entry. As described ante, defendant made an unlawful entry into the victim’s residence. (See ante, § I.B.) Defendant’s burglarious intent could be reasonably and justifiably inferred from the unlawful entry alone. (Jordan, supra, 204 Cal.App.2d at p. 786; Martin, supra, 275 Cal.App.2d at p. 339.)
Moreover, we note defendant’s inconsistent statements about his presence in the vicinity of the victim’s residence that day. Upon being stopped by Officer Vasquez, defendant said he was going to the park to meet a friend, and that he was carrying a screwdriver because he did “side jobs.” When he was interviewed by Officer Eckenrode, about one or two hours after being detained, defendant said he was on his way to the mall. He insisted 17 times that he was not in anyone’s yard, and he specifically denied being in the victim’s backyard. He also denied that he was being chased by anyone. However, by the time of the preliminary hearing, defendant completely changed his story. He admitted that he went into the victim’s backyard, and said he jumped the victim’s gate because he was being chased by a car. Defendant also said he had just found the screwdriver on the street, just 50 seconds before the police stopped him. The jury could reasonably infer from the evidence of his inconsistent accounts of what he was doing in the vicinity and why he was in possession of a screwdriver, that defendant had no reasonable explanation for the entry.
Defendant contends the evidence was insufficient to support a burglary conviction because there was no evidence of any missing property. This claim is meritless. “One may [be] liable for burglary upon entry with the requisite intent to commit a felony or a theft (whether felony or misdemeanor), regardless of... whether any felony or theft actually is committed. [Citations.]” (People v. Montoya (1994) 7 Cal.4th 1027, 1041.) In other words, section 459 only requires a showing of an unlawful entry, accompanied by the intent to steal or to commit any felony. (Ibid.) There was no requirement to show that any property was missing.
Viewing the evidence in the light most favorable to the prosecution, as we must, we conclude the circumstances reasonably justify the jury’s finding that defendant entered the victim’s residence with the requisite intent. (Bean, supra, 46 Cal.3d at pp. 932-933.) Thus, there was sufficient evidence to support defendant’s burglary conviction.
II. The Matter Should Be Remanded for a Marsden Hearing
Defendant contends that the trial court erred in failing to conduct a Marsden hearing, despite his clear request for one. The People concede the matter and maintain the proper disposition is to remand the matter to the trial court for a hearing on defendant’s allegations. We agree.
A. Relevant Background
At the beginning of the sentencing hearing, defendant asked the trial court for a Marsden hearing. The trial court responded, “All right. That request is denied.” Defendant persisted and informed the trial court that he had been trying, throughout the case, to have his attorney replaced, but no judge had given him a chance to explain his situation. The trial court repeatedly asked defendant if he had made the request in its courtroom. Defendant said he had tried. The trial court said he was incorrect. Defendant then asked why he could not have a Marsden hearing, since he had a conflict with his counsel. The trial court responded that he had been convicted, and the matter was set for sentencing that day. The trial court then asked defendant what conflict he had. Defendant said, “Well, my conflict is a lot of issues that I have in my motions that I wrote out for myself.” The trial court replied, “All right. At this time, we will be proceeding....”
B. The Trial Court Erred in Failing to Conduct a Marsden Hearing
“When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation—i.e., makes what is commonly called a Marsden motion [citation]—the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” (People v. Smith (2003) 30 Cal.4th 581, 604.)
Here, the trial court denied defendant’s explicit request for a Marsden hearing, apparently on the belief that his request was untimely. However, a Marsden hearing may be held at any point in the proceedings, including at the beginning of a sentencing hearing. (People v. Smith (1993) 6 Cal.4th 684, 691-692, 695.) The trial court erred in failing to permit defendant to articulate his complaints.
“When, as here, a request for new counsel comes after trial, and the court fails to conduct a proper Marsden hearing, ‘[t]he appropriate course of action is to remand to the trial court to allow it to fully inquire into appellant’s allegations concerning counsel’s performance.” (People v. Ivans (1992) 2 Cal.App.4th 1654, 1667 [Fourth Dist., Div. Two].) The trial court should then allow defense counsel to respond. (People v. Eastman (2007) 146 Cal.App.4th 688, 695.) If the trial court, in its discretion, determines that good cause for appointment of new counsel has been shown, it shall appoint new counsel to conduct further proceedings as are necessary. If the trial court determines that good cause has not been shown, it shall reinstate the judgment. (People v. Mendez (2008) 161 Cal.App.4th 1362, 1369; People v. Minor (1980) 104 Cal.App.3d 194.)
III. The Trial Court Properly Limited Defendant’s Presentence Conduct Credits Under Section 2933.1
At the time of sentencing, the trial court awarded defendant 117 days of presentence custody credit, plus 17 days of conduct credit under section 2933.1. Defendant contends that because his current offense was not a violent offense within the meaning of section 667.5, subdivision (c), the amount of presentence conduct credit to which he was entitled should have been calculated pursuant to section 4019, rather than section 2933.1. We disagree.
We note that defendant made an application to correct conduct credits with the trial court on or about April 28, 2010. The record on appeal contains no indication of the trial court’s response.
Sections 2933.1 and 667.5, subdivision (c), limit a defendant’s presentence conduct credits to a maximum of 15 percent when the defendant’s current conviction is violent within the meaning of section 667.5. (People v. Garcia (2004) 121 Cal.App.4th 271, 276 (Garcia); People v. Henson (1997) 57 Cal.App.4th 1380, 1389-1390 [Fourth Dist., Div. Two].) Section 667.5, subdivision (c)(21), states: “Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.”
Section 460, subdivision (a), provides: “Every burglary of an inhabited dwelling house... is burglary of the first degree.”
Defendant argues that he was not convicted of a violent felony, within the meaning of section 2933.1, since there was no allegation or jury finding that another person was present in the residence during the burglary. The People claim that there was such an allegation, since the information alleged that defendant entered “an inhabited dwelling house” with the intent to commit theft, and the jury found that he committed a first degree burglary. The People additionally assert that the evidence showed that the victim was in his residence during the commission of the burglary. The People conclude that the evidence supported a finding by the trial court that the victim was in his residence when defendant made the entry.
We initially note that the People incorrectly assume that the burglary was charged as a violent felony simply because the information alleged that defendant entered an “inhabited” dwelling house. Within the meaning of section 459, “inhabited” means “currently being used for dwelling purposes, whether occupied or not.” (§ 459, italics added.) Thus, the burglary charge in the information did not allege a violent felony, within the meaning of section 667.5, subdivision (c)(21), since the word “inhabited” does not mean that another person was in the residence at the time of the burglary.
Nonetheless, we conclude that the trial court properly applied section 2933.1 to defendant’s conduct credits. It appears that due process principles form the legal basis of defendant’s claim. The “‘charged and proved’” terminology of section 667.5 “safeguard[s] the defendant’s right to notice of the facts the prosecution intends to prove as well as the due process requirement that the People actually prove the facts required either for imposing an increased penalty or for making decisions regarding the severity of the sentence....” (Garcia, supra, 121 Cal.App.4th at pp. 278-279.) The information here alleged that defendant entered an “inhabited dwelling house” with the intent to commit theft. It did not contain an allegation that “another person, other than an accomplice, was present in the residence during the commission of the burglary.” (§ 667.5, subd. (c)(21).) However, “the information has a ‘limited role’ of informing defendant of the kinds and number of offenses; ‘the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript, ’ which represents ‘the touchstone of due process notice to a defendant.’” (People v. Jones (1990) 51 Cal.3d 294, 312.) In other words, a preliminary hearing transcript also “provides notice under California law as to the charges.” (People v. Fitzgerald (1997) 59 Cal.App.4th 932, 936; see also, People v. Thomas (1987) 43 Cal.3d 818, 829.) The transcript of the preliminary hearing here details the conduct the prosecution was contending constituted the burglary with which defendant was charged. Specifically, the prosecution presented evidence that the victim was in his residence when he heard the doorbell ring; he saw an unknown male, in his backyard, walking toward the rear door of his residence; he believed that person was about to break in, so he went to retrieve a firearm; then he heard a scratching sound at the backdoor; he found a fresh cut in the sliding screen door; and he later identified defendant as the person he saw in his backyard. Thus, defendant had notice that the prosecution intended to prove he committed a burglary of a residence at a time when the victim, who was not an accomplice, was present.
Furthermore, there is no doubt defendant was convicted of a violent felony under section 667.5, subdivision (c). The information charged in count 1 that he committed a residential burglary of an inhabited dwelling, and the jury found him guilty as charged. There is no dispute as to the facts that the victim was present in the residence, and that he was not an accomplice. Moreover, the probation report recommended that defendant receive credit for time served of 134 days, consisting of 117 days of presentence custody credit, plus 17 days of conduct credit under section 2933.1. At sentencing, defense counsel specifically acknowledged that he had received a copy of the probation report, reviewed it, and consulted with defendant regarding it. The trial court asked if defendant wanted to be heard on the probation officer’s report. Defense counsel submitted on the report, without further comment. The trial court proceeded to award defendant presentence credits, including the 17 days of conduct credit under section 2933.1. The trial court’s calculation under section 2933.1 indicates that it made an implied finding that defendant’s burglary conviction was violent, within the meaning of section 667.5. We additionally note that, contrary to defendant’s claim, he was not entitled to a jury finding on the issue and applicability of the conduct credit limitation, since the limitation on presentence credits under section 2933.1, subdivision (c), is not a sentencing enhancement and does not increase the maximum penalty for first degree burglary. (Garcia, supra, 121 Cal.App.4th at pp. 277-278.)
On this record, we conclude it was charged and proved that a person, other than an accomplice, was present in the residence during the commission of the burglary. Therefore, the trial court properly limited defendant’s conduct credits to 15 percent, pursuant to section 2933.1.
DISPOSITION
The judgment is reversed, and the matter is remanded for the limited purpose of holding a Marsden hearing to hear defendant’s reasons for his dissatisfaction with his counsel. If the trial court determines that defendant is entitled to substitution of new counsel, the trial court shall appoint new counsel for purposes of a new trial motion or other proceedings. If the trial court determines that there is no basis for new counsel, it should deny the Marsden motion and reinstate the judgment.
We concur: RAMIREZ P. J., CODRINGTON J.