Opinion
C080759
02-22-2018
THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE TORRES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F02842)
Defendant Enrique Torres was convicted by jury of first degree burglary. In a bifurcated proceeding, the trial court found defendant was previously convicted of a serious felony offense (Pen. Code, § 667, subd. (a)) qualifying as a strike under the three-strikes law (§§ 667, subds. (b)-(i), 1170.12) and also served two prior prison terms (§ 667.5, subd. (b)). Following an unsuccessful motion to strike defendant's prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the trial court sentenced him to serve 15 years in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends: (1) the trial court prejudicially erred and violated his federal constitutional rights by instructing the jury to consider the level of certainty with which an eyewitness made an identification in evaluating the accuracy of that identification; (2) defendant's conviction must be reduced to second degree burglary because the evidence was insufficient to establish the house was inhabited; and (3) the trial court abused its discretion by denying defendant's Romero motion.
We must affirm. Our Supreme Court has previously upheld the propriety of the challenged instruction. Thus, regardless of how we might have decided the matter in the first instance, we are obligated to follow this binding precedent. We also conclude there was sufficient substantial evidence establishing beyond a reasonable doubt the house defendant burglarized was inhabited. And the trial court did not abuse its discretion in concluding defendant did not fall outside the spirit of the three strikes law.
FACTS
On a Saturday evening in May 2015, two men burglarized a house in the Arden-Arcade area of Sacramento. The homeowner (victim) and her daughter lived in the house, but were not home at the time. The house was in the process of being sold, so they routinely spent weekends at a relative's house to facilitate potential buyers' ability to see the house.
Two testifying witnesses saw the burglary occur. One of these witnesses, S.J., positively identified defendant as one of the burglars and did so with certainty. This identification, coupled with the fact defendant was detained in the area a short time after the burglary because he matched the general description provided to law enforcement officers, was the only evidence connecting him to the crime. Because defendant challenges an instruction directing the jury to consider the certainty with which an eyewitness makes an identification in assessing the reliability of that identification, we describe in some detail S.J.'s identification of defendant, placing it in the context of each witness's account of the burglary.
The victim's house was located at the corner of Bell Street and Santa Anita Drive. The neighbor across the latter street, T.B., testified that he pulled into his driveway at around 6:30 p.m. and saw two men pushing an empty Home Depot platform cart up the victim's driveway. He lost sight of the men as they got to the house. A few minutes later, he saw the same men coming back down the driveway with what appeared to be an appliance on the cart. While he did not get a close enough look to identify either man, he described them as "dark complected," "either . . . [B]lack or Hispanic," with an "average" height and build. He also testified one of the men might have gotten onto a bicycle while the other pushed the cart north on Bell Street.
S.J. and his girlfriend were riding their bicycles down Bell Street when the burglars were making their way down the driveway. As S.J. described in his testimony, "two Hispanic males were coming down the driveway with an orange cart with a washer and dryer on it. The washer and dryer fell off at the bottom of the driveway, and they were struggling to get both items back on the cart." S.J. became suspicious when he nodded to the men as he passed by and asked them how they were doing, but received no response. He then looked up the driveway and saw the gate on the side of the victim's house and side door to the garage looked like they had been "kicked open." At that point, S.J. stopped and told the men he would be taking the cart, but "they immediately took off down the street." As S.J. described, both men got onto bicycles and towed the appliances north on Bell Street, each man holding onto the cart with one hand. When they got a short distance up the street, they stopped, unloaded the appliances from the cart, and carried them through a gap in some oleander bushes dividing Bell Street from a frontage road. Rather than follow in pursuit, S.J. called 911 and reported the burglary to law enforcement authorities. S.J. testified the men were wearing black shorts, white knee-high socks, tennis shoes, and white shirts, one sleeveless and the other a plain t-shirt. He also explained that he saw their faces clearly because it was still light outside and he was "probably closer than three feet" away when he and his girlfriend passed by on their bicycles.
Sheriff's deputies arrived about 15 minutes later. The Home Depot cart was found in a drainage ditch between Bell Street and the frontage road where S.J. saw the men disappear with the appliances between the oleanders. From that location, one of the deputies saw defendant walking towards him from the south along the frontage road. Defendant, a Hispanic male, was wearing charcoal gray shorts, white crew socks, tennis shoes, a white t-shirt, and a baseball cap. He was detained as matching the general description provided to the 911 operator.
The washer was found a short distance north of where defendant was detained, in the side yard of a house facing the frontage road. The gate providing access to this yard was not locked and could easily be opened from the road. About 15 minutes before deputies arrived in the neighborhood, J.G., a neighbor three houses south of the house where the washer was found, heard yelling and what sounded like "hard wheels on the street" outside. He came outside to investigate, saw someone pushing "a big white box" toward the other house, and then went back into his house. Less than 10 minutes later, he again heard yelling and returned to his front yard, where he saw a Hispanic male without a shirt walking past his house south on the frontage road. The man appeared to be "motioning and yelling to someone" further south on the frontage road. J.G. also testified at trial, but could not identify the person he saw walking past his house and did not see the person to whom that person was apparently yelling and motioning. Nor did he see where the shirtless man went once law enforcement officers began arriving on the scene.
As mentioned, defendant was detained on the frontage road several houses south of J.G.'s house. A helicopter that was also dispatched to the area located a second person matching the general description a short distance north of where the washer was found, but deputies responding to that location were unable to find the potential suspect. The dryer was also never located.
About an hour after the burglary, S.J. participated in an in-field show up and positively identified defendant as one of the burglars. It was still light outside when the show up occurred. S.J. viewed defendant for about 30 seconds before making the identification, asking to see him from the front, side, and back, which the sheriff's deputies accommodated. As one of the deputies testified, S.J. seemed confident in his identification and said defendant's height, hair style, facial hair, skin tone, t-shirt, shorts, socks, and shoes were the same. S.J. confirmed during his testimony that he was confident in his identification of defendant, adding that defendant's "mannerism," which he clarified meant, "how he carried himself," was also consistent with that of one of the burglars. When asked whether he could positively identify anyone in the courtroom, S.J. said he "believe[d] it would be the gentleman in the blue shirt," indicating defendant, but he could not "say definitively."
Finally, we note defendant's fingerprints did not match any of the latent prints obtained from various places in the victim's house, garage, and back yard. The washer was processed for fingerprints prints as well, but none were found.
DISCUSSION
I
Eyewitness Identification Instruction
Defendant contends the trial court prejudicially erred and violated his federal constitutional rights by instructing the jury with a portion of CALCRIM No. 315 directing the jury to consider the level of certainty with which an eyewitness made an identification in evaluating the accuracy of that identification. Defendant did not object to this instruction at trial. "Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243. [Citation.]" (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) Because our Supreme Court has previously rejected this contention, we are bound to conclude there was no error.
As delivered to the jury in this case, CALCRIM No. 315 provides: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: Did the witness know or have contact with the defendant before the event? How well could the witness see the perpetrator? [¶] What were the circumstances affecting the witness' ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation? How closely was the witness paying attention? [¶] Was the witness under stress when he or she made the observation? Did the witness give a description, and how does that description compare to the defendant? How much time passed between the event and the time when the witness identified the defendant? [¶] Was the witness asked to pick the perpetrator out of a group? Did the witness ever fail to identify the defendant? [¶] Did the witness ever change his or her mind about the identification? How certain was the witness when he or she made an identification? [¶] Are the witness and the defendant of different races? Was the witness able to identify other participants in the crime? [¶] Was the witness able to identify the defendant in a photographic or physical lineup? Were there any other circumstances affecting the witness' ability to make an accurate identification? [¶] The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty." (Italics added.)
As our Supreme Court explained in People v. Sanchez (2016) 63 Cal.4th 411 (Sanchez), the court "specifically approved" CALCRIM No. 315's predecessor, CALJIC No. 2.92, "including its certainty factor" in People v. Wright (1988) 45 Cal.3d 1126 (Wright), and "reiterated the propriety of including this factor" in People v. Johnson (1992) 3 Cal.4th 1183 (Johnson). (Sanchez, supra, 63 Cal.4th at p. 462.) After noting certain out-of-state cases have disapproved instructing on the certainty factor in light of "scientific studies that conclude there is, at best, a weak correlation between eyewitness certainty and accuracy" (id. at p. 461; see, e.g., State v. Mitchell (2012) 294 Kan. 469; Commonwealth v. Santoli (1997) 424 Mass. 837), the Sanchez court declined to reexamine its previous holdings, explaining there were a number of identifications in the case, some certain and some uncertain, and therefore it was "not clear that even those [out-of-state] cases would prohibit telling the jury it may consider this factor" in a case where the defendant "would surely want the jury to consider how uncertain some of the identifications were." (Sanchez, at p. 462.) The court further stated: "Any reexamination of our previous holdings in light of developments in other jurisdictions should await a case involving only certain identifications." (Ibid.)
Here, as defendant accurately observes, the only witness who identified him as one of the burglars did so with certainty during the in-field show up and reiterated how certain he was about that identification during his trial testimony. While, as in Sanchez, supra, 63 Cal.4th 411, defendant did not object to the eyewitness identification instruction or request modification of the instruction to remove the certainty factor, this instructional error claim is not forfeited if the error affected his substantial rights, i.e., resulted in a miscarriage of justice. (People v. Anderson, supra, 152 Cal.App.4th at p. 927.) Unlike Sanchez, where there was strong evidence of the defendant's guilt independent of the identification evidence, and where the defendant may well have benefitted from the instruction because it highlighted those identifications that were less than certain, in this case, the only evidence against defendant was the identification and the fact he was detained in the area shortly after the burglary matching the general description that same witness provided to the 911 operator. However, because we are bound by our Supreme Court's decisions in Sanchez, supra, 63 Cal.4th 411 Wright, supra, 45 Cal.3d 1126 and Johnson, supra, 3 Cal.4th 1183 we must conclude there was no error in instructing the jury with CALCRIM No. 315, including the certainty factor. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We decline to address whether or not instructing on this factor, assuming error, would have affected defendant's substantial rights.
Nor may we conclude instructing on the certainty factor violated defendant's federal constitutional right to due process. In Neil v. Biggers (1972) 409 U.S. 188 , the United States Supreme Court identified several factors to consider in determining the reliability of an eyewitness identification, including "the level of certainty demonstrated by the witness . . . ." (Id. at pp. 199-200.) More recently, in Perry v. New Hampshire (2012) 565 U.S. 228 , addressing the defendant's due process argument concerning the reliability of an identification, the high court cited the Neil factors, including certainty, and held these factors may properly be considered in evaluating the reliability of an eyewitness identification. (Id. at pp. 725-726 & fn. 5.) We are, of course, bound by these decisions as well. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
The trial court did not err in instructing the jury with CALCRIM No. 315 concerning its evaluation of eyewitness testimony.
II
Sufficiency of the Inhabitation Evidence
Defendant also claims his conviction must be reduced to second degree burglary because the evidence was insufficient to establish the house was inhabited at the time of the entry. He is mistaken.
"Every person who enters any house . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." (§ 459.) "Every burglary of an inhabited dwelling house . . . is burglary of the first degree." (§ 460, subd. (a).) " '[I]nhabited' means currently being used for dwelling purposes, whether occupied or not." (§ 459.)
"Case law has defined what constitutes an 'inhabited dwelling house' within the meaning of the burglary statutes. '[C]ourts have explained that the term "inhabited dwelling house" means a "structure where people ordinarily live and which is currently being used for dwelling purposes." ' [Citation.] The term 'has been analyzed in terms of whether the dwelling was being used as a residence.' [Citation.] Factors relevant to determining whether a house is 'inhabited' include whether the owner or occupant sleeps in the house, keeps personal belongings there, and intends to continue living there. [Citations.] (People v. Tessman (2014) 223 Cal.App.4th 1293, 1298 (Tessman).)
In Tessman, the Court of Appeal held the defendant was properly convicted of first degree residential burglary where she went to an open house viewing and stole some items from the master bedroom. As the court explained, the owner of the house still lived there despite the fact she placed the house on the market and was temporarily absent during the open house. Her belongings remained there while the house was on the market for sale. She stayed there the night before the open house, returned home afterwards, and did not move out of the house until it was sold. Her testimony to that effect "established [she] was using the house as her residence, and it therefore qualified as an 'inhabited dwelling house.' " (Tessman, supra, 223 Cal.App.4th at p. 1298; see also People v. Little (2012) 206 Cal.App.4th 1364, 1368-1370.)
Here, the homeowner testified she and her daughter lived in the house. While the house was in the process of being sold, they routinely spent weekends at a relative's house to facilitate the potential buyers' ability to see the house, but this does not negate the fact they still lived there. "[A] building which is in current use as living quarters but from which the owner is temporarily absent is inhabited." (People v. Lewis (1969) 274 Cal.App.2d 912, 918-919.) The homeowner's belongings also remained at the house, she was there the morning of the burglary before heading to the relative's house for the weekend, and she did not move out until after the burglary, when the sale fell through and she decided to rent out the house rather than sell it. As in Tessman, supra, 223 Cal.App.4th 1293 the house was inhabited for purposes of the burglary statutes.
Nevertheless, defendant argues the facts of this case are more similar to those in People v. Cardona (1983) 142 Cal.App.3d 481 (Cardona) and People v. Burkett (2013) 220 Cal.App.4th 572 (Burkett). In Cardona, the Court of Appeal reduced a first degree burglary conviction to second degree burglary where the former residents of the house that was burglarized moved out of that house the day before the burglary and "did not intend ever to spend another night at [that] house." (Cardona, supra, at p. 482.) In Burkett, a divided panel of this court similarly reversed a first degree burglary conviction in favor of second degree burglary where the former resident of the house that was burglarized moved out two days before the burglary and spent the intervening day painting and cleaning the house in preparation for the homeowner to move back in, but that homeowner did not intend to move his family into the house until two days after the burglary occurred. (Burkett, supra, at p. 575.) We explained: "Here, there is no evidence that the burglarized residence was inhabited, that it was currently being used by someone for dwelling purposes. Under established California precedent, it is not enough to show the home was suited for use as a residence and its owner had declared his [or her] intent to move in or that it had been recently used or would be imminently used. Nor is there evidence that its owner was merely away temporarily." (Id. at p. 582, italics added.)
Contrary to defendant's argument on appeal, unlike either Cardona or Burkett, there is substantial evidence the homeowner and her daughter still lived at the house at the time it was burglarized. The fact that other witnesses testified it "appeared to be vacant" from the outside is immaterial. The determinative question is whether or not the homeowner intended to use the house as a residence. As we have already explained, her testimony that she and her daughter lived there, coupled with the presence of their belongings in the house, provides more than sufficient evidence in this regard. Nor does defendant provide any support in the record for his assertion that "she must have been staying at [the relative's house] more often than not" at the time the burglary occurred. And, more importantly, he does not provide any legal authority supporting a conclusion that this purported fact would matter. Indeed, a vacation home has been held to be an inhabited dwelling for purposes of the burglary statutes despite the fact people generally inhabit their primary home more often than they inhabit their vacation home. (See Burkett, supra, 220 Cal.App.4th at p. 580 ["both homes contain personal items, and potential for personal harm from outside intrusion exists in both homes"].)
Sufficient substantial evidence supports defendant's conviction for first degree burglary.
III
Denial of the Romero Motion
Finally, we also reject defendant's assertion the trial court abused its discretion by denying his Romero motion.
Section 1385, subdivision (a), provides that a "judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." In Romero, our Supreme Court held a trial court may utilize section 1385, subdivision (a), to strike or vacate a prior strike conviction for purposes of sentencing under the three strikes law, "subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion." (Romero, supra, 13 Cal.4th at p. 504.) Similarly, a trial court's "failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at pp. 376-377.)
We are also mindful that " 'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he [or she] actually fell outside the Three Strikes scheme." ' [Citation.]" (Carmony, supra, 33 Cal.4th at p. 377.) "[T]he court in question must consider whether, in light of the nature and circumstances of his [or her] present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) Thus, the three-strikes law "creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378, italics added.) This presumption will be rebutted only in an "extraordinary case—where the relevant factors described in Williams, supra, 17 Cal.4th 148 manifestly support the striking of a prior conviction and no reasonable minds could differ." (Ibid.)
Here, after entertaining argument from counsel, the trial court ruled: "The concern for this Court is that although the conviction of the strike prior from '96 is somewhat old, in the meantime [defendant] for the time that he's actually been out of prison continues to have little regard for the laws of this state. The two convictions in particular that I am drawn to are the [unlawful taking or driving of a vehicle] from 2009 and the [possession of a firearm by a convicted felon] from 2013 which is just of strong concern [for] this court, and it is -- perhaps it's fortuitous, perhaps -- I don't know, but it's a very good thing that no one was home when this crime was committed because it could have resulted in a very serious situation if someone had been home, and violating the sanctity of someone's home I take very seriously, so I declined to strike the strike. The motion is denied." Defendant characterizes this ruling as "cursory" and faults the trial court for "not address[ing] the nature of the strike prior or [his] background and prospects." While the trial court did not discuss each of the Williams factors in ruling on the motion, we must presume the trial court considered all of the relevant factors in the absence of an affirmative showing to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
Defendant also argues he "falls outside the spirit of the Three Strikes Law." Not so. His present felony offense, first degree burglary, is a serious offense. (See § 1192.7, subd. (c)(18).) And, as the trial court noted, the only thing preventing this crime from also being a violent offense is the fortuity that neither the victim nor her daughter was home at the time. (See § 667.5, subd. (c)(21).) Defendant's prior strike offense was for shooting at an inhabited dwelling in 1996, also a very serious felony. (See § 1192.7, subd. (c)(33).) We acknowledge, as defendant points out, he was a young man of 18 when this crime was committed and was apparently the driver of the vehicle involved in the shooting rather than one of the shooters. And had defendant led a morally blameless life in the interim, his youth at the time of the prior strike and lesser role in the offense might have carried more weight with the trial court. However, as the trial court noted, defendant was convicted of the unlawful taking or driving of a vehicle in 2009 and possession of a firearm by a convicted felon in 2013. Thus, including the present offense, defendant's criminal behavior spans over two decades. This goes to both his background and his character. Nor are we persuaded by defendant's suggestion the declining seriousness of his criminal conduct over the years renders him outside the spirit of the three strikes law. Finally, the fact there is "little in the record about [defendant's] family or his future prospects" does not aid him. As the moving party, it was defendant's burden to demonstrate he fell outside the spirit of the three strikes law. The trial court had no obligation to seek out evidence that was not presented. (People v. Lee (2008) 161 Cal.App.4th 124, 129.)
Based on the evidentiary showing made by defendant, the trial court was well within its discretion to conclude he did not fall outside the spirit of the three strikes law and deny the Romero motion.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
BUTZ, J.