Opinion
F071075
07-20-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JOSEPH HALL, Defendant and Appellant.
Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1441297)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Edward M. Lacy, Jr., Judge. Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Anthony Joseph Hall was convicted of one count of first degree burglary of a residence in which a person other than an accomplice was present, and one count of receipt of stolen property. His sentence of 35 years to life included a third-strike enhancement. In this appeal, he contends: (1) the trial court erred when it denied his motion under Penal Code section 1118.1 to find unproven the allegation that a person other than an accomplice was present during the burglary; (2) because two break-in points were found, the court erred by not giving the jury an instruction to decide unanimously which of these formed the basis of its finding on that allegation; (3) the court failed to understand its discretion regarding his Romero motion to dismiss a prior strike or strikes, and would have granted the motion if it had understood; and (4) we should remand to allow the trial court to supply statutory citations in support of some of the fees imposed at sentencing.
Subsequent statutory references are to the Penal Code unless otherwise noted.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
As the People concede, it was error not to include statutory authority for those fees. The parties suggest a remand with directions to supply the missing authority, but this is not necessary, as we have identified the pertinent statutes. We will treat the error as clerical and order the trial court to modify the abstract of judgment to include the necessary information. We reject Hall's other arguments and will affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Christine M., who was 15 years old, came home from school on January 30, 2012, and went upstairs. She was the only person home. Between one minute and four minutes after her arrival, she heard the doorbell ring, the doorknob rattle, and the sound of someone kicking the front door. She also thought she heard footsteps inside. She went in a closet and called 911.
Deputy Frank Alves responded within a few minutes and saw Hall in front of the house, near the front door, carrying a black backpack. Hall ran and Alves pursued. When Alves caught Hall and subdued him near a park a short distance away, Hall no longer had the backpack. Alves found it afterwards in some bushes where he had seen Hall taking cover at one point during the chase.
Among the items of property in the backpack or in Hall's pockets were some tools, some old coins, some Mexican currency, and some documents bearing the name of Larry Gray. Larry Gray's house was near Christine's and had been burglarized a few days before. The old coins, the Mexican money, and some of the tools had been taken from Christine's home. Substantially more old coins and money had been taken but were not recovered from Hall or the backpack. Some of the other property recovered was returned to Gray.
At Christine's house, Alves found a footprint in some mud near the door at the rear of the attached garage. The print matched the shoes Hall was wearing. That door had been forced open and was damaged. Inside the garage, cupboards and drawers stood open. There was a door leading from the garage into the rest of the house, but this was deadbolted and remained closed.
Alves also found that the front door of the house was damaged. The bottom portion of the door was broken inward and the door had nearly become detached from its hinges.
Hall spoke to Alves and also to Deputy Douglas Adams. He told them he was walking nearby when he met his friend, Juan Jose. Juan Jose asked him to help break into the house because someone living there owed him money. Hall agreed. He kicked in the back door and waited outside while Juan Jose went inside. Then the two of them went to the front door and Hall started kicking it, but Juan Jose told him the police were coming and both fled. Hall said the property on his person was the share Juan Jose gave him for his help. Juan Jose threw down the backpack while fleeing and Hall picked it up. No accomplice was found.
The district attorney filed an information charging Hall in count 1 with first degree burglary of a residence (§ 459.) The information alleged that a person other than an accomplice was present in the residence during the commission of the burglary. (§ 667.5, subd. (c)(21).) Count 2 charged Hall with receiving stolen property. (§ 496, subd. (a).)
The information further alleged that Hall had been convicted of first degree burglary on two prior occasions, once in 2007 and once in 2008. These prior convictions were alleged for purposes of sentence enhancements under section 667, subdivisions (a) and (d), and section 667.5, subdivision (b).
After the prosecution had presented its evidence at trial, the defense made a motion under section 1118.1, asking the trial court to find that insufficient evidence had been presented to allow the allegation under section 667.5, subdivision (c)(21) (i.e., the allegation that Christine was home during the burglary) to go to the jury. This motion was based on the theory that the first thing Christine heard when she got home was an attempt to enter through the front door; this attempt failed and the burglary in the garage was over by then (or not shown not to be over), so no burglary was occurring during the time when Christine was in the house. The court denied the motion.
The jury found Hall guilty as charged and found true the allegation under section 667.5, subdivision (c)(21). The trial court found the prior conviction allegations true, except that for purposes of the enhancements under section 667.5, subdivision (b), it found Hall had served only one prior prison term, not two.
After denying Hall's motion to strike a prior strike under Romero and section 1385, the court sentenced Hall to a term of 35 years to life. This consisted of a third-strike sentence of 25 years to life for the burglary, with the two prior burglaries counting as the prior strikes (§ 667, subd. (d)), plus five years each for the same two prior burglaries pursuant to section 667, subdivision (a). The court reduced count 2 to a misdemeanor and imposed a concurrent sentence of six months.
DISCUSSION
I. Section 1118.1 motion
Hall maintains the court erred when it denied his section 1118.1 motion, in which he argued that the evidence supporting the allegation that Christine was present in the house during the burglary was insufficient for submission to the jury. This contention is without merit.
The purpose of a section 1118.1 motion is to allow the weeding out of those few instances in which the prosecution fails to make a prima facie case. (People v. Stevens (2007) 41 Cal.4th 182, 200.) We review the trial court's denial of the motion under the same standard as a claim that a jury's verdict or finding was not supported by sufficient evidence: We affirm unless there were one or more elements of the charge that were unsupported by substantial evidence. (Ibid.)
Substantial evidence presented by the prosecution enabled a reasonable finder of fact to find beyond a reasonable doubt that Christine was in the house during the burglary. A reasonable finder of fact could find this in two different ways. First, Christine testified that the closet in which she hid was located in her mother's room above the garage. "I thought I ... heard footsteps inside the house" while hiding there, she testified. On cross-examination, she clarified that by "inside the house" she meant inside the main part of the house, not inside the attached garage. She conceded that she could not have been hearing footsteps in the main part of the house because the burglar or burglars succeeded in entering only the garage. Hall suggests this testimony must mean Christine did not actually hear any footsteps in any part of the building. But a reasonable juror could find Christine simply was mistaken about where the footsteps were coming from, and that in reality they were coming from the garage directly beneath her. Since no one else with permission to be there was home, it would follow that Christine was hearing Hall or his accomplice (if he really had one) committing the burglary in the garage, and thus that she was present in the house during its commission.
Second, Christine testified that she heard the noise at the front door as it was being partially kicked in. As an effort to gain access to another portion of the dwelling that was being burglarized (and at roughly the same time), the partial kicking-in of the front door was part of the same burglary as the break-in via the back door of the attached garage. (See People v. Harris (2014) 224 Cal.App.4th 86, 90 ["A structure is part of a dwelling if it is functionally interconnected with and immediately contiguous to other portions of the house."].) This would be true even if there had been no door between the garage and the main part of the house (see id. at pp. 90-91), but in fact the evidence showed there was such a door.
Hall says it would be a mistake to uphold the trial court's ruling on the ground that the burglary continued until he reached a place of temporary safety, because that would lead to the incongruous conclusion that the violent-felony status conferred on a burglary by section 667.5, subdivision (c)(21), applies even when a resident gets home long after the burglar has left, provided the burglar is still in transit to a place of temporary safety. But this is beside the point. Hall had not left. He was still on the property trying to break into another part of the house while Christine was present. On any reasonable view of the facts, this case falls squarely within the type of situation contemplated by the statute: A resident of the burgled house was home during the burglary.
This is not a difficult issue. The evidence not only was sufficient to prove Christine was in the house during the burglary, but was practically impossible to square with any other conclusion. In People v. Alvarado (2001) 87 Cal.App.4th 178, 187 (Alvarado), the Court of Appeal rejected, as a frustration of legislative intent, the defendant's argument that he did not rape the victim during the commission of a burglary because, by the time he raped her inside her home, his act of breaking into the home with intent to commit a felony had already taken place and was completed. Hall's argument in this case is not quite so absurd, but it is still clearly wrong. The burglary was obviously still being committed upon Christine's arrival. While inside, she heard footsteps inside the building and also heard someone trying to effect entry into a second portion of it; the police found Hall at the front door minutes later.
Hall also argues that the trial court applied the wrong legal standard when it denied the motion. This contention is based on two remarks the court made. First, it stated that during the one to four minutes between Christine's arrival and the first noises she heard, "theoretically" Hall or his supposed accomplice could have been in the garage. Second, "it certainly was not impossible" that Hall or the accomplice were in the garage while Christine was home.
Contrary to Hall's contention, we do not think that because the court used this language instead of framing its remarks in terms of substantial evidence, it must have believed that the applicable standard required it to deny the motion unless it was theoretically impossible for the allegation to be true. That is not a plausible interpretation of the record. Further, even if the court had misunderstood the substantial evidence standard, its error would have been harmless, for as we have said, it is entirely clear that substantial evidence was presented in support of the allegation. II. Unanimity instruction
Hall argues that the trial court should, on its own motion, have instructed the jury to decide unanimously which of the two break-in points—the back door or the front door—was the basis of its finding that he committed a burglary while someone other than an accomplice was present. He is mistaken.
Generally, a trial court errs if it fails to give a unanimity instruction, whether requested or not, when the evidence would support a finding of more than one crime, chargeable as separate offenses. (People v. Maury (2003) 30 Cal.4th 342, 422.) When the evidence shows only one crime, no such instruction is called for, even if the evidence leaves room for disagreement about exactly how the crime was committed. In the latter situation, there merely are multiple available theories of the one crime, and this does not trigger the requirement of unanimity. (People v. Russo (2001) 25 Cal.4th 1124, 1132-1133 (Russo).)
In Russo, our Supreme Court gave the following example: If the evidence showed an entry with burglarious intent of a house on Elm Street on Tuesday and of another house on Maple Street on Wednesday, the jury could not find the defendant guilty unless it unanimously found he committed at least one of these. By contrast, if the evidence showed only one of these entries, but multiple possible burglarious intents, this would amount only to multiple theories of the case and no unanimity instruction would be needed. (Russo, supra, 25 Cal.4th at pp. 1132-1133.)
In this case, there was evidence of entry or attempted entry through two doors, but these were two doors of the same house and they were breached as parts of a single transaction or course of conduct. (People v. Jennings (2010) 50 Cal.4th 616, 679 [unanimity instruction unnecessary when multiple acts form parts of single transaction or course of conduct]; People v. Crandell (1988) 46 Cal.3d 833, 875 [same], overruled on other grounds by People v. Crayton (2002) 28 Cal.4th 346, 364-365.) The uncontradicted evidence showed that Hall, with or without an accomplice, decided to break into Christine's house for purposes of theft, and then proceeded to break into the garage through the back door (near which Hall's footprint was found) and to try to break into another part of the house through the front door. Both broken doors were parts of one burglary, so the question of which one was the breaking that satisfied the entry element of burglary was only a question about different theories of the case. Consequently, there was no need for the jury to decide unanimously which door was the basis for finding that Hall committed a residential burglary while a person other than an accomplice was present in the residence.
Hall insists that the two break-in points can be viewed neither as parts of a continuous transaction nor as bases of alternative theories of the case because a burglary is complete once the burglar has entered. Thus two entries with the necessary intent must be two burglaries, and the jury would have to decide during which of these burglaries Christine was in the house, if either. As our remarks about Alvarado, supra, 87 Cal.App.4th 178, have already indicated, this conception of what it means for something to happen during a burglary leads to absurd consequences. If this conception were applied to section 667.5, subdivision (c)(21), no burglar would ever be guilty of committing a residential burglary while someone other than an accomplice was home unless such a person were home at the moment the burglar passed into the residence. The statute would not apply where a resident came home while the burglar was inside committing felonies. We do not consider this a reasonable interpretation of the statute.
As an illustration of our criticism of Hall's position, suppose that instead of entering and stealing from the garage and then going around to kick in the front door, Hall had instead entered and stolen from the garage and then tried to kick in the door inside the garage leading to the main part of the house. No one could seriously suggest that a person hearing the second kicking from inside the house was not home during the burglary because Hall had finished one burglary before the hearer got home and he never completed a second burglary because he did not get through the second door. It makes no difference that in reality the second door was an exterior door.
Of course, if Hall broke into the garage after kicking the front door, he necessarily did so while Christine was home, since this would have had to happen between the kicking of the front door and the arrival of the police, for both of which she was present.
Elsewhere in his brief, Hall argues that the breaking of the front door could not, by itself, show the entry element of burglary because the attempt to break through the door failed, resulting only in the lower portion of the door being damaged and forced inward, and because nothing showed that Hall's foot passed into the house while this was being done. We need not take this question up. We only point out that if it is correct, it defeats Hall's claim about a unanimity instruction, for then there would be evidence of only one entry and nothing for the jury to choose between. III. Romero motion
Hall's intention in making this argument, apparently, is to show that Christine's testimony about hearing the kicking at the front door did not show the entry element of a burglary was occurring while she was home. As we have already indicated, it did not need to show that. It only needed to show the burglary was still in progress after she got home, even assuming it started earlier. --------
Hall contends that the case should be remanded for resentencing because remarks made by the trial court revealed its failure to understand its discretion to grant his Romero motion. The record does not support this contention.
A trial court has discretion to strike, at a defendant's request or on its own motion, prior felonies alleged for sentence enhancement purposes under the three strikes law. (§ 1385; Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to strike a prior felony allegation, the court must "consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) We review a trial court's decision to deny a request to strike prior strike allegations for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374) The court abuses its discretion if its application of the factors set forth in Williams "'falls outside the bounds of reason.'" (Williams, supra, 17 Cal.4th at p. 162.)
At sentencing, after hearing arguments of counsel on the Romero motion, the trial court made remarks exhibiting its understanding of its discretion to grant or deny the motion. It began by saying, "Court does have jurisdiction under Penal Code Section 1385 to strike [priors alleged for three strikes purposes]; however, Court must find it's in the interest of justice to do so." Then the court considered a number of factors relevant to the decision. It observed that Hall was only 23 when he committed the current offenses and had no violent priors, but he began committing property crimes that brought him within the court's jurisdiction as a juvenile in 2003 and committed first degree burglaries as an adult in 2007 and 2008. He was on probation when he committed the 2007 burglary and on parole when he committed the 2008 burglary. The probation report listed 11 acts of misconduct committed by Hall during the three-year period when he was in pretrial custody on the current offenses; the court thought this was not favorable to the motion. Referring to the youth of the victim, the court opined that the nature of the offense did not place it outside the sphere of offenses for which a third-strike sentence was appropriate. The court had heard Hall's parents testify that they considered themselves responsible for his conduct, since they had brought him up in a household in which drug abuse and other illegal behavior was accepted. Hall's mother also said Hall had a daughter he had never met "because of his decisions." The court, however, concluded in spite of these points that Hall's family relationships did not suggest the interests of justice would be served by granting the motion.
The court made two other remarks Hall says are relevant to its understanding of its discretion to grant a motion under section 1385 and Romero. First, after reciting the above factors and indicating it believed they did not weigh in favor of the motion, it said:
"Really, the only argument that the Court feels could be made to support the Romero motion is very bluntly this amount of time for property crimes is just too much. That's an argument for the legislature not for the trial court."
Then, after denying the motion, the court stated its understanding that it did not have discretion to strike the prior conviction allegations for purposes of the two five-year enhancements under section 667, subdivision (a). It would, however, have done this if it could. These enhancements were for the same two burglaries that formed the basis of the third-strike sentence. The court opined that there might be some cases in which using prior offenses twice in this manner to maximize the sentence would be appropriate, but this was not such a case. It said, "For appellate purposes, if the appellate court were to find I had discretion to strike ... either or both the [section 667, subdivision (a)] priors, I would do so."
Hall does not argue that the court had discretion to strike any priors for purposes of section 667, subdivision (a). Instead, he maintains these remarks show the court wanted to impose a lesser sentence but failed to notice that its discretion to grant the Romero motion would allow it to impose a lesser sentence. He says the court could have gotten what it wanted by striking one of the priors, imposing a second-strike sentence of 12 years (the upper term of six years doubled for the one prior strike), and then imposed the two five-year enhancements under section 667, subdivision (a), for a total determinate sentence of 22 years.
This simply is not a reasonable interpretation of what the court showed it understood or what it said it wanted. The court could not have made much clearer its understanding that it had the power to grant the Romero motion and strike one or both prior strikes. It also stated quite clearly that it believed doing so would not serve the interests of justice, with a detailed explanation of why it thought this. So the court knew it could impose a determinate sentence by exercising its Romero discretion, and it decided not to do so for reasons it stated on the record. It also indicated it would have imposed an indeterminate sentence of 25 years to life by striking the section 667, subdivision (a) allegations, had that been an option. But there is no reason to think what it really meant was that it wanted to impose a determinate sentence of 22 years and failed to realize it could do so. Hall has not shown the trial court failed to understand its discretion. IV. Statutory basis for fee
At the sentencing hearing, the trial court stated orally that it was imposing a "a $5,000 restitution fine, $80 security fee, $40 conviction fee, [and] $38 theft fee." The original abstract of judgment, filed on January 21, 2015, provided statutory citations for each of these, including a citation of section 1202.5 for the $38 fee. That section, however, provides for a fee of only $10. (§ 1202.5, subd. (a)(1).) An amended abstract submitted to this court on August 4, 2015, shows the same $38 and the same citation of section 1202.5, but adds a note stating that the "[f]ine imposed is $10 plus applicable penalty assessments." No explanations or citations are provided for the "applicable penalty assessments" making up the remaining $28. The probation report, which might have cleared up the mystery, has not been included in the record submitted to this court by the parties.
Hall points out that the trial court was required to provide statutory authority for all fees, fines and assessments it imposed, and the People rightly agree. The law requiring the imposition of fees, fines and assessments against those convicted of crimes is intricate, and if the trial court merely states that its impositions are "applicable," it is difficult for the appellate court to check its work and for the correctional authorities to apply properly any money they collect from the defendant. (People v. High (2004) 119 Cal.App.4th 1192, 1200 ["Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment."].) The trial court is in the best position to know how it derived the figures it is imposing, and is always required to provide intelligible citations for each item.
The parties agree that a suitable remedy would be a remand with directions to the trial court to supply the missing authority. Luckily, this will not be necessary. We have through our own research been able to identify authority in effect in 2012 supporting each of the several components that must have made up the $28. Each item is calculated upon the base fine of $10 imposed under section 1202.5:
¦ state penalty assessment (§ 1464, subd. (a)(1)), $10 for each $10 assessed for a criminal offense, here equal to $10.
¦ state surcharge (§ 1465.7), 20 percent of the underlying fine used to calculate the assessment imposed under section 1464, subdivision (a)(1), here equal to $2.
¦ state court construction penalty (former Gov. Code, § 70372), $3 for every $10 assessed for a criminal offense, here equal to $3.
¦ additional penalty (Gov. Code, § 76000), $7 for every $10 assessed for a criminal offense, here equal to $7.
¦ county emergency medical services penalty (Gov. Code, § 76000.5), $2 for every $10 imposed for a criminal offense, here equal to $2.
¦ DNA fingerprint penalty (Gov. Code, § 76104.6), $1 for every $10 assessed for a criminal offense, here equal to $1.
¦ additional DNA fingerprint penalty (former Gov. Code, § 76104.7) $3 for every $10 assessed for a criminal offense, here equal to $3.
Because all these items are mandatory, a sentence omitting them would be unauthorized and we would have authority to modify the judgment on appeal to include them. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1414.) In this case, they were not omitted. The court merely failed to supply the necessary statutory citations for them. This was only a clerical error, which we will order corrected.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment including the statutory bases for the $28 in assessments, surcharges and penalties that it imposed without citation. The amended abstract must list each item with its citation, as indicated in part IV of the Discussion above. The trial court is to forward the amended abstract to the appropriate correctional authorities.
/s/_________
SMITH, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
FRANSON, J.