Opinion
A146261
04-17-2017
THE PEOPLE, Plaintiff and Respondent, v. RICARDO SALVADOR JIMENEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 51417542)
A complaint charged Ricardo Salvador Jimenez with various felonies, including unlawfully driving or taking a vehicle with a prior conviction (Veh. Code, § 10851, subd. (a), Pen. Code, 666.5) and receiving stolen property (§ 496, subd. (a)). At the preliminary hearing, the magistrate declined the prosecutor's request for a holding order on residential burglary (§§ 459, 460, subd. (a)), which was not charged in the complaint. The prosecution subsequently filed an information charging Jimenez with residential burglary and the trial court denied Jimenez's motion to set aside the burglary charge. A jury convicted Jimenez of all charges, and the court sentenced him to state prison.
All undesignated statutory references are to the Penal Code.
Jimenez appeals. He contends the court prejudicially erred by denying his motion to set aside the residential burglary charge, and that the prosecution failed to prove an element of that charge at trial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts relevant to the issues on appeal. We provide additional factual and procedural details in the discussion of Jimenez's specific claims.
The People charged Jimenez with driving or taking a vehicle with a prior conviction (Veh. Code § 10851, subd. (a), § 666.5); receiving stolen property (§ 496, subd. (a)); possessing a controlled substance (Health and Saf. Code, § 11377, subd. (a)); and vehicle burglary (§§ 459, 460, subd. (b)). The complaint alleged sentencing enhancements.
Preliminary Hearing
On a July 2014 evening, Lafayette Police Officer Neal Bassett and his partner went to a gated apartment complex on Carol Lane. During the day, the apartment complex's main gate is open. Officer Bassett drove to the rear of the apartment complex and parked near Building K. Building K has three floors of apartments. Its residents park in a carport directly underneath the first floor of apartments. Building K's apartments are "physically attached" and "physically connected" to the carport: the walls of the apartment building form the exterior walls of the carport and the apartments on the first floor form the carport's roof.
When asked "can anyone just enter this . . . parking garage[,]" Officer Bassett responded, "When the gate is open, the main gate . . . for the apartment complex, absolutely."
Residents park in assigned parking spaces, marked with numbers. Directly above the parking spaces are the first floor apartments. A door along a wall of the carport opens to an exterior stairwell. That stairwell — comprised of five to eight stairs — leads from the carport to the apartments on the first floor. The stairwell "access[es] [the] front door" of the first floor apartments.
After parking his patrol car, Officer Bassett went to Brian S.'s apartment, on the first floor of Building K. Brian S.'s wife, Sharon S., told Officer Bassett she saw a man — later identified as Jimenez — in the carport. Later that day, Brian S. was taking trash to the carport and noticed his car's front license plate was gone and the rear plate had been "severely vandalized." The car had been parked in its assigned parking place. Law enforcement officers found Jimenez with Brian S.'s license plate.
At the conclusion of the preliminary hearing, the prosecutor asked "for a holding order" on residential burglary, arguing: "I think we've heard sufficient information that the defendant was in the garage and that garage is attached to the residences of this complex, it's functionally interconnected. And since the Court heard evidence on it, I would ask for a holding order on a residential burglary." The court responded, "there may be evidence in the record of it, but it just wasn't clear to the Court what [the carport] looked like. There was no photograph that was taken. It may be that you can charge it, but I'm not going to hold on it."
The court held Jimenez to answer to driving or taking a vehicle with a prior conviction (Veh. Code, § 10851, subd. (a), § 666.5); receiving stolen property (§ 496, subd. (a)); possessing a controlled substance for sale (Health & Saf. Code, § 11377, subd. (a)); and vehicle burglary (§§ 459, 460, subd. (b)).
Motion to Set Aside the Residential Burglary Charge
As relevant here, the prosecution filed an information alleging residential burglary (§§ 459, 460, subd. (a)). The prosecution alleged Jimenez "unlawfully enter[ed] a dwelling house . . . inhabited by Brian S.[,] . . . Building K, Unit 101, with the intent to commit larceny and a felony."
Section 739 authorizes the prosecutor to file an information "which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed." (Simons, Cal. Preliminary Examinations and 995 Benchbook: Statutes and Notes (2017 ed.) § 4.6, p. 4-29 (Simons).) On appeal, Jimenez does not challenge the prosecution's power to include the residential burglary charge in the information. "A mere refusal to hold to answer does not amount to a factual determination fatal to the charge." (People v. Superior Court (Day) (1985) 174 Cal.App.3d 1008, 1017; see also Simons, supra, § 4.6.2, p. 4-30.)
Jimenez moved to set aside the charge pursuant to section 995, arguing the prosecution presented insufficient evidence at the preliminary hearing demonstrating he "entered a dwelling house . . . or inhabited portion of a building." Jimenez sought to distinguish People v. Thorn (2009) 176 Cal.App.4th 255, 262 (Thorn), which held the carport area at issue was "'functionally interconnected to and immediately contiguous to' the apartments used for 'residential activities.' [Citation.]" According to defense counsel, the preliminary hearing evidence "did not adequately clarify the parking area's relationship to the apartment building[,]" and there was no photographic evidence of the carport's layout. Defense counsel also claimed a reasonable person could believe the carport was open to visitors or the public.
In opposition, the prosecution argued the evidence at the preliminary hearing was sufficient for a holding order on residential burglary. As the prosecutor explained, "The testimony of Officer Basset unmistakabl[y] establishes that the parking structure where the defendant committed his theft is functionally interconnected with the attached residential apartments. The facts elicited from Officer Basset are much like the facts of Thorn" and "under the rationale of Thorn, there is surely sufficient evidence to support a holding order for a residential burglary[.]"
At a hearing on the motion to set aside, defense counsel contended the carport was not "interconnected and contiguous" with Building K's apartments. The prosecutor disagreed, noting Officer Bassett testified the apartment building was "physically connected" to the garage and "basically forms the parking garage" and that Brian S. testified his apartment "is 5 to 8 stairs, and 12 feet away from the parking garage, and was on the first level of the complex, which . . . forms the roof of the parking garage." At the conclusion of the hearing, the court denied Jimenez's motion to set aside, opining the evidence was "sufficient . . . to charge the residential burglary."
Verdict and Sentence
The jury convicted Jimenez of residential burglary (§§ 459, 460, subd. (a)); unlawfully driving or taking a vehicle with a prior conviction (Veh. Code, § 10851, subd. (a), § 666.5); misdemeanor receiving stolen property (§ 496, subd. (a)); misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); and vehicle burglary (§§ 459, 460, subd. (b)). The court found certain sentencing enhancement allegations true and sentenced Jimenez to nine years in state prison.
DISCUSSION
I.
The Court Properly Denied Jimenez's Motion to Set Aside the
Residential Burglary Charge
Jimenez claims the court erroneously denied his motion to set aside because the prosecution did not establish "at the preliminary hearing that the carport was within the outer boundary of a dwelling, i.e. that a 'reasonable person would believe that the element of the building in question enclosed an area into which a member of the general public could not pass without authorization.' "
A. Standard of Review
" '[W]hen a district attorney files an information in the superior court, containing an offense not included in the commitment order signed by the magistrate who conducted the preliminary examination on the initial complaint, the court must uphold the information if the evidence adduced at the preliminary hearing is sufficient to support the new or additional charge [citation].' [Citation.] 'In short, under . . . section 739 the district attorney is not bound by the view of the committing magistrate; he is free to file an information charging the highest offense which any reasonable construction of the evidence adduced at the preliminary hearing admits [citation]. Thus, when section 739 and . . . section 995 are read conjointly, it follows that the superior court is likewise not bound by the view of the committing magistrate; it too should uphold the information as to any offense charged in the information of which any reasonable construction of the evidence adduced at the preliminary hearing admits. . . .' [Citation.]" (People v. Barba (2012) 211 Cal.App.4th 214, 227 (Barba).)
" 'In other words, if the defendant moves to dismiss the information under these circumstances, the question of his guilt or innocence is not before the court nor does the issue concern the quantum of evidence necessary to sustain a judgment of conviction. On the contrary, the court should decide from the evidence adduced at the preliminary hearing, without attempting to reconcile conflicts or judge the credibility of the witnesses, whether there is reasonable or probable cause to believe the defendant guilty of the offense charged. And, there is sufficient evidence to require the superior court to deny defendant's motion if it raises a clear and distinct inference of the existence of the essential elements of the crime charged [citation].' [Citation.]" (Barba, supra, 211 Cal.App.4th at pp. 227-228; see also People v. Slaughter (1984) 35 Cal.3d 629, 639-640.)
We independently review the court's ruling on the 995 motion. (People v. Bautista (2014) 223 Cal.App.4th 1096, 1101; Barba, supra, 211 Cal.App.4th at p. 222.)
B. The Carport Is Functionally Interconnected with, and Immediately Contiguous to, the First Floor of Building K's Apartments
A conviction of residential burglary requires entry of an "inhabited dwelling house" with the intent to commit a felony. (§§ 459, 460, subd. (a).) The burglary statutes are designed to "to protect the peaceful occupation of one's residence" against intrusion and violence, and cases have broadly construed the phrase " 'inhabited dwelling house.' " (People v. Cruz (1996) 13 Cal.4th 764, 775, 768.) To determine "whether a structure is part of an inhabited dwelling, the essential inquiry is whether the structure is 'functionally interconnected with and immediately contiguous to other portions of the house.' [Citation.] 'Functionally interconnected' means used in related or complementary ways. 'Contiguous' means adjacent, adjoining, nearby or close. [Citations.]" (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1107.)
Several cases have held garages and carports are part of an inhabited dwelling house under the burglary statutes. (Thorn, supra, 176 Cal.App.4th at p. 262 [" 'immediately contiguous' requirement . . . easily met" where carport area was "situated close to and directly underneath the occupied apartments themselves"]; People v. Harris (2014) 224 Cal.App.4th 86, 90 ["[a] garage sharing a roof and a wall with a residence is part of an inhabited dwelling" despite lack of "interior access"]; In re Christopher J. (1980) 102 Cal.App.3d 76, 80, 78 ["carport appurtenant to the dwelling house," with a roof and a wall along one side, "was attached to and an integral part of the dwelling house"]; In re Edwardo V. (1999) 70 Cal.App.4th 591, 594-595 (Edwardo V.) [multi-unit apartment building's common garage constituted inhabited dwelling and citing cases].) Jimenez concedes the carport was functionally connected with, and immediately contiguous to, portions of Building K.
C. A Reasonable Person Would View the Carport as an Enclosed Area Into Which a Member of the General Public Could Not Pass Without Authorization
The prosecution must also prove the structure is constructed in such a way that " 'a reasonable person would believe that' the element of the building in question enclosed an area into which 'a member of the general public could not pass without authorization.' [Citation.]" (Thorn, supra, 176 Cal.App.4th at p. 264.) According to Jimenez, no "reasonable person would believe members of the general public needed authorization to enter the carport." We disagree.
The California Supreme Court articulated the "reasonable belief test" in People v. Valencia (2002) 28 Cal.4th 1 (Valencia), which concerned "whether penetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute when the window itself is closed and is not penetrated." (Id. at pp. 3-4.) Valencia held that where "the outer boundary of a building for purposes of burglary is not self-evident, . . . a reasonable belief test generally may be useful in defining the building's outer boundary. Under such a test, in dealing with items such as a window screen, a building's outer boundary includes 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. . . . The test reflects and furthers the occupant's possessory interest in the building and his or her personal interest in freedom from violence that might ensue from unauthorized intrusion." (Id. at p. 11, fn. omitted.) The Valencia court concluded "a window screen is clearly part of the outer boundary of a building for purposes of burglary. A reasonable person certainly would believe that a window screen enclosed an area into which a member of the general public could not pass without authorization." (Id. at p. 12.)
Valencia was disapproved in part on other grounds in People v. Yarbrough (2012) 54 Cal.4th 889, 894.) We decline Jimenez's invitation to conclude the Attorney General "has waived" this issue. We reject the Attorney General's claim, made for the first time at oral argument, that this court need not consider the reasonable belief test where the defendant concedes a structure is functionally interconnected with and immediately contiguous to a residence.
Thorn — which applied the reasonable belief test to a carport — is instructive. There, the carport area comprised "the entire ground floor of the apartment building, [was] roofed by the apartments above, share[d] common walls with the apartments above, structurally support[ed] the apartments built above it, and l[ay] entirely within the plane of the apartment building structure." (Thorn, supra, 176 Cal.App.4th at p. 266, fn. 5.) Applying the reasonable belief test, a division of this court determined "the open entrance to the carport marked the outer boundary of the apartment building for purposes of burglary. The open carport here is directly analogous to the area behind the window screen in Valencia in that a reasonable person certainly would believe that the carport 'enclosed an area into which a member of the general public could not pass without authorization.' [Citation.] Indeed, a member of the general public . . . had no business entering the carport at issue here. It is enclosed on three sides. It is not open at either end or in such other way that it could be reasonably viewed as a throughway or a shortcut to some point beyond. It constitutes a private, individually designated parking space in which its occupant has a possessory interest for the purpose of parking his or her vehicle as well as storing personal possessions." (Id. at p. 265.)
Thorn concluded "a reasonable person would view the carport as an 'enclosed [ ] area into which a member of the general public could not pass without authorization.' [Citation.] Accordingly, under the reasonable belief test, [the defendant's] entry of the carport with felonious intent constitutes first degree burglary." (Thorn, supra, 176 Cal.App.4th at p. 266.) The Thorn court was not "swayed by the fact that there was no physical barrier to . . . entry of the carport" — such as a gate or garage door — and neither are we. (Id. at p. 265.) Although no physical barrier prevented Jimenez's entry into the carport, he "had no business entering [it]. It is enclosed on three sides. . . . It constitutes a private, individually designated parking space in which its occupant has a possessory interest for the purpose of parking his or her vehicle as well as storing personal possessions." (Ibid.)
The carport here is virtually identical to the carport area in Thorn. That the carport did not, as in Thorn, have a "Tenant Parking Only'" sign does not prevent Thorn's rationale from applying here, in part because the carport had "numbers for the purpose of making sure that people park in their assigned parking." (Thorn, supra, 176 Cal.App.4th at p. 261.) We are not persuaded by Jimenez's claim that a reasonable person could use the doorway at the back of the carport as a "shortcut to reach the . . . rest of the [apartment] complex" nor by his reliance on Officer Bassett's comment that "anyone" can enter the carport during the day. A reasonable inference from the preliminary hearing testimony is the carport was an area into which a member of the general public could not pass without violating social convention.
This case bears no similarity to People v. Brown (1992) 6 Cal.App.4th 1489, 1497, which concerned an "unenclosed front porch."
Edwardo V., supra, 70 Cal.App.4th at page 595, supports our conclusion. In that case, the minor defendant argued " 'the burglary took place in a garage where residents of each apartment should have expected to regularly encounter residents of the other unit, as well as guests of those residents.' " (Ibid.) The Edwardo V. court agreed but concluded: "the minor did not fall within either of these classifications. And the building's tenants were reasonably entitled to believe they would not find burglars there either. We conclude the record contains sufficient evidence to support the trial court's implied finding that the tenants would expect protection from unauthorized intrusions in the garage and the area qualifies as an 'inhabited dwelling house' within the meaning of . . . section 460." The same is true here. The victim, Brian S., could reasonably "expect protection from unauthorized intrusions" in the carport. (Ibid.)
We conclude the carport constitutes a private, individually designated parking area in which Brian S. had a possessory interest for the purpose of parking his car and storing his personal possessions. As in Thorn and Edwardo V., the entry into the carport amounted to entry into an inhabited dwelling house within the meaning of the burglary statute, and the court properly denied the motion to set aside the residential burglary charge. Having reached this result, we need not determine whether the denial of Jimenez's motion to set aside prejudiced him.
II.
Jimenez's Due Process Claim Fails
Next, Jimenez contends his due process rights were violated because "the prosecution failed to produce evidence at trial establishing that a reasonable person would have believed that a member of the general public needed authorization to enter the carport[.]"
A. Trial Testimony
Brian and his wife, Sharon S., moved into Building K in July 2014. Building K and its carport had "far less" foot traffic than the rest of the apartment complex because Building K is at the end of a dead end street. Sharon S.'s family had an assigned parking space in the carport underneath the apartments. Their apartment was directly above their parking space. The carport shared a wall with their apartment.
The court admitted several photographs of the apartment building, including the carport.
One afternoon shortly after moving into the building, Sharon S. walked downstairs into the carport, where the trash bins were located. Her family's BMW was in its assigned parking place, with its license plates affixed. She noticed there were three BMWs parked in the carport, which she thought was strange. As she took her trash to the trash bin, a man approached her and said, "I'll take that for you." At the time, Sharon S. thought it was "overly friendly." The conversation stood out in her mind, but she did not take any action because she was new to the apartment building and thought "maybe that was the neighborly thing that people did." The man — later identified as Jimenez — was "feverishly" cleaning a BMW, "sweating" as he waxed it. Later, Sharon S. learned the BMW was parked in a space belonging to another person, a man who lived in apartment 106. At about 6:30 p.m., Sharon S.'s husband was taking trash to the trash bin and noticed both of the car's license plates were missing. Sharon S. called the police.
B. Jimenez's Due Process Claim Fails
According to Jimenez, the evidence at trial was insufficient to establish "a reasonable person would believe a member of the general public would need authorization to enter" the carport and, as a result, his due process rights were violated. This claim fails.
As Jimenez concedes, whether a reasonable person would believe the general public could not enter the carport without authorization is a legal issue — not a factual issue for the jury to decide — and that this legal issue was resolved in the prosecution's favor at the hearing on the section 995 motion. (Valencia, supra, 28 Cal.4th at p. 16; People v. Fox (1997) 58 Cal.App.4th 1041, 1047 [jury required to find structure was inhabited and "whether the garage was 'attached,' and thus an integral part of the structure"]; Thorn, supra, 176 Cal.App.4th at p. 268 ["application of the reasonable belief test to determine whether penetration of a particular part of a building amounts to an entry for purposes of the burglary statute is a question of law for the court and not a question of fact for the jury"].)
Jimenez also concedes trial counsel did not request an "instruction asking the jury to determine whether a reasonable person would believe that a member of the general public needed authorization to enter the carport, because that was a legal question that the court had already decided in denying the [section] 995 motion." Jimenez's due process argument is no more persuasive than his argument that the trial court erred by denying his motion to set aside the residential burglary charge.
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.