Opinion
A147617
08-11-2017
THE PEOPLE, Plaintiff and Respondent, v. ALEXAS WALEMA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 15021854)
Defendant and appellant Alexas Walema (appellant) was convicted of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)) and misdemeanor trespassing (§ 602, subd. (m)). The trial court imposed a three-year prison term, comprised of the two-year low term on the assault charge, a six month concurrent sentence for the trespassing charge, and a one-year prior prison term sentence enhancement (§ 667.5, subd. (b)).
Appellant's convictions are based on a September 2015 incident at the Westin St. Francis hotel in San Francisco. Two security guards employed by the hotel discovered appellant in the shoeshine area of the hotel at about 11:30 p.m. at night. She appeared to be under the influence and could not demonstrate she was a guest of the hotel. The security guards later found her hiding under a chair near the hotel's fitness center and they asked her to leave. She refused and appellant bit one of the guards during a struggle that ensued when he attempted to handcuff her.
Among other things, appellant contends her conviction for trespassing must be reversed because it is not supported by substantial evidence in the record. "[T]he test of whether evidence is sufficient to support a conviction is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Holt (1997) 15 Cal.4th 619, 667.) The provision under which appellant was convicted, section 602, subdivision (m), encompasses a trespass by "[e]ntering and occupying real property or structures of any kind without the consent of the owner, the owner's agent, or the person in lawful possession." (§ 602, subd. (m).)
Appellant points out that to sustain her conviction for trespassing under section 602, subdivision (m), the prosecution was required to prove she "enter[ed]" the Westin St. Francis "without the consent of the owner." (§ 602, subd. (m); see also CALCRIM 2931.) She further points out the trial court acknowledged it was undisputed she entered with the implied consent of the hotel. (See People v. Wilkinson (1967) 248 Cal.App.2d Supp. 906, 908 [consent to enter "can be implied as well as express"].) In particular, in rejecting appellant's request that the jury be instructed on the definition of "consent," the trial court said, "It was clear that when [appellant] entered the property, it was, in fact, open to the public. That was testified to, I think, by just about everybody who was on the stand, except perhaps [appellant], but certainly by the security officers. There was no objection from anyone. She was there, and I think [appellant] indicated she was there and had been there on prior occasions. I think she said [four] various times, five or six times. [¶] So I don't think that the language would add anything to assist the jury." Because there was no evidence appellant entered the hotel without the consent of the owner, insufficient evidence supports the conviction under section 602, subdivision (m).
For example, one of the security guards testified the hotel "get[s] a lot of foot traffic . . . from non guests" and there is no "time when the doors to the hotel are locked up so people who aren't guests cannot access the hotel."
In its brief on appeal, respondent does not deny a conviction under section 602, subdivision (m) requires evidence of entry without consent or argue there was any evidence appellant entered the Westin St. Francis without the consent of the hotel. Instead, respondent contends there is sufficient evidence appellant committed a trespass within the meaning of section 602, subdivision (o), because she refused to leave upon request. However, respondent presents no authority this court may affirm because the evidence would have supported a verdict that appellant committed a trespass under a different subsection than charged under the information and submitted to the jury. We will reverse the conviction for trespassing.
In pertinent part, section 602, subdivision (o) provides it is a trespass for a person to willfully "Refus[e] or fail[] to leave land, real property, or structures belonging to or lawfully occupied by another and not open to the general public, upon being requested to leave by (1) a peace officer at the request of the owner, the owner's agent, or the person in lawful possession, and upon being informed by the peace officer that he or she is acting at the request of the owner, the owner's agent, or the person in lawful possession, or (2) the owner, the owner's agent, or the person in lawful possession."
In support of its position, respondent cites only a single out-of-state decision, Houston v. Municipality of Anchorage (Ala. 2002) 59 P.3d 773. But that case is distinguishable: Although the defendant there was "charged and convicted under the wrong subsection of the trespass ordinance," the information "fully apprised" the defendant of the elements of the proper subsection and the jury's findings necessarily encompassed those elements. (Id. at p. 777; see also ibid. ["under the facts of [the] case, trespassing on residential property was in effect a lesser-included offense of trespassing on commercial property"].) In the present case, the jury's findings under section 602, subdivision (m) did not encompass the findings required to sustain a conviction under section 602, subdivision (o).
We need not and do not consider any of appellant's other claims of error. --------
DISPOSITION
The conviction for trespassing is reversed and the matter is remanded to the trial court with directions to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.