Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA085421. Tia G. Fisher, Judge.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and Scott A. Taryle, Supervising Deputy Attorneys General, and Alene M. Games, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendant Robert Zamagni appeals from the judgment entered following a jury trial in which he was convicted of one count of attempted first degree burglary, two counts of first degree burglary, and one count of attempted destruction of evidence. Defendant contends that a pretrial identification procedure was unduly suggestive, the trial court erred by denying his motion for mistrial after one of the robbery victims testified that he spoke to defendant’s parole officer, and insufficient evidence supports his conviction of attempted burglary and multiple counts of burglary based upon entry of unlocked rooms within the house. We reverse one count of burglary for insufficient evidence, but otherwise affirm.
BACKGROUND
Andrew Tsujimoto, Jason Mueller, and Kailene Horlitz were friends who shared a four-bedroom house in La Verne. Each had his and her own bedroom and Mueller, who worked from home, used the fourth bedroom as his office.
Tsujimoto was a waiter and generally worked from about 4:00 p.m. to 11:00 p.m. Around noon on December 12, 2008, Tsujimoto awoke at the sound of knocking on the front door. (All further date references pertain to 2008, unless otherwise specified.) He heard someone walking through the house and thought it was one of his roommates. Then someone tried to open the locked door of Tsujimoto’s bedroom. He knew his roommates would have knocked or yelled, so he got up to investigate. He walked through the empty hallway and turned toward the front door, where he saw a man standing in front of the open door, holding “an arm full of stuff.” Tsujimoto yelled, “Hey.” The man turned toward Tsujimoto and stared at him for one or two seconds “with like a dear [sic] in headlights kind of look.” The sun was streaming in through the front door, shining on the man’s face. Tsujimoto had “slightly better than perfect” vision. Tsujimoto testified at trial that defendant was the man he saw in his house.
Defendant ran out of the house, and Tsujimoto followed as far as the driveway. Defendant ran up the street and got into the passenger side of a small silver SUV, much like a Honda CR-V, that was in the middle of the street, about two houses away. The vehicle drove past Tsujimoto’s house at about 10 to 15 miles an hour and ran a stop sign at the end of the block. Tsujimoto did not look at the interior of the vehicle, but stared at the front and rear license plates and memorized them. He wrote down the license plate information when he went back into the house.
In the driveway, Tsujimoto found and retrieved a box containing a mobile phone that Horlitz had purchased as a gift for her boyfriend. Horlitz testified that the box had been in her bedroom before she left for school on December 12.
Tsujimoto called the police. Several La Verne Police Department officers responded, included Devon Harden. Tsujimoto testified that he told the police that the burglar was “a white male, over six foot, approximately six-two, pretty clean cut hair, buzzed sides.” Harden dusted the mobile phone box for fingerprints. The parties stipulated that defendant was not a match for the single fingerprint lifted from that box.
Harden investigated the license plate number Tsujimoto had given him and discovered it was registered to Kim Evans. He checked other records and found the names of two men “associated” with Evans who fit Tsujimoto’s description of the suspect. Detective Mark Gutierrez obtained photographs of those two men and prepared two six-pack photographic arrays that included their photos. Harden returned to Tsujimoto’s house about 3:00 p.m. on December 12 and showed him the two six-packs, neither of which contained defendant’s photo. Harden told Tsujimoto that he did not have to identify anyone. Tsujimoto did not identify either of the men associated with Evans, but picked a randomly inserted photograph in the second six-pack. Tsujimoto wrote that he was “95 percent sure that Number 2 was the guy. He has the same long face and short hair.”
Harden returned to the police station and continued his investigation. He found records indicating that defendant was also associated with Evans. (Ultimately, it was discovered that defendant and Evans were married.) Detective Gutierrez created a third six-pack containing a 2006 photograph of defendant. Harden went to Tsujimoto’s workplace about 4:30 p.m. on December 12 and showed him the third six-pack. Harden told Tsujimoto not to pick any of the six people if he “couldn’t positively identify him, ” but “if he recognized one of them, to write that down on the back.” Tsujimoto wrote, “Number 4 [defendant] was close but Number 2 from the other sheet looked more like him.” The police never told Tsujimoto whether he had “accurately identified anybody or not.”
Outside an apartment building in San Dimas, Detective Gutierrez located a vehicle matching Tsujimoto’s description of the getaway vehicle and bearing a license plate with the same number Tsujimoto reported. Gutierrez alerted Harden. Harden went to the building and they knocked at the door of a particular apartment. No one answered. The apartment manager gave Harden a key to the apartment. Harden knocked again, and Evans opened the door. After the officers spoke to Evans for a time, she let them in. Three officers entered. They announced that they were La Verne police officers and were looking for Robert Zamagni. They received no response, but located defendant hiding under a bed. Gutierrez recovered a mobile phone from a table in the apartment.
Sometime between 5:30 and 7:00 p.m. on December 12, Harden picked up Tsujimoto at work and drove him to the parking lot of an apartment complex. Harden read Tsujimoto the following advisement from a card: “The person you are about to see may or may not be the person who committed the offense. You are not obligated to pick anyone. We are interested in clearing the innocent as well as finding the guilty.” Tsujimoto testified that Harden told him “to just look at the suspect and take my time, try to see if it was the person that I believed was in my house earlier that day and if I couldn’t positively I.D. the person, I didn’t have to. I wasn’t obligated to I.D. him if I didn’t feel comfortable, if I wasn’t a hundred percent sure that it was the person that I saw.” Harden’s statement that the police had “found a suspect” did not lead Tsujimoto to believe that the person the police were going to show him was probably the person he had seen in his house. Harden stopped the police car behind a silver Toyota RAV-4, and Tsujimoto identified the vehicle as the one he had seen leaving the vicinity of his residence. Then Harden drove closer to the building and used the police car’s headlights and spotlight to illuminate defendant, who was seated on a curb with his hands cuffed behind his back. Defendant stood up. There were other people, including uniformed police officers standing near defendant who were illuminated by the lights, but Tsujimoto thought the light was aimed at defendant. Tsujimoto identified defendant as the burglar. He had no doubts about his identification. The only thing about defendant that differed from the man Tsujimoto saw in his house that morning was the clothing. Defendant appeared to be approximately 6 feet 2 inches tall and had the same “shoulder width, body size, sort of jaw structure, [and] sort of square long face.” The police did not tell Tsujimoto anything about his identification.
As stated, Tsujimoto testified that his bedroom door was locked at the time of the burglary. Mueller testified that his office door had a lock, but Mueller did not lock it unless there were guests in the house. He had a meeting in Santa Monica on the morning of December 12 and left the house about 8:30 a.m. Horlitz testified that her bedroom door had a lock, but she did not have the key and thus did not lock her door. Horlitz thought she may have left the front door to the house unlocked when she left for school about 11:00 a.m. on December 12.
Mueller testified that after he returned home about 1:30 p.m. on December 12, he found that some change and two utility knives were missing from his bedroom and a memory card reader and memory card were missing from his home office. Horlitz returned home in the evening and found that a laptop that had been on her bed and some jewelry were missing from her bedroom.
Gutierrez found the following text message on defendant’s mobile phone: “You got stuff at Mondo’s. A laptop, DVD drive. So call me.” Harden attempted to interview defendant at the police station. Harden asked defendant who Mondo was. Defendant denied knowing a Mondo but admitted the phone was his. Harden handed defendant the mobile phone with the text message displayed. Defendant erased the message, but denied he had done so. Harden had previously photographed the message. A video recording of the interview was played at trial. Defendant made no admissions other than owning the phone.
The jury convicted defendant of attempted first degree burglary, two counts of first degree burglary, and attempted destruction of evidence. The court found true allegations that defendant had two prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)); all further statutory references pertain to the Penal Code unless otherwise specified), two prior convictions that constituted “strikes” within the scope of the Three Strikes law, and had served three prior prison terms (§ 667.5, subd. (b)). The court vacated one of the strike findings and sentenced him to a second-strike term of 25 years in prison.
DISCUSSION
1. One-person field identification
Before trial, defendant moved to suppress evidence of Tsujimoto’s identification of defendant at the field showup and any identification Tsujimoto might make at trial on the ground that the field showup was unduly suggestive. The court conducted an Evidence Code section 402 hearing at which Tsujimoto and Harden testified. Defendant waived his right to be present and was not in the courtroom while Tsujimoto testified.
Tsujimoto testified at the hearing that he had been asleep and was awakened by a knock on the door around noon. Thereafter, he saw the full face of the burglar for one or two seconds from a distance of about 15 feet. Tsujimoto’s vision is very good. About two hours after Tsujimoto saw the burglar in the house, the police showed him the first two six-packs of photographs. He selected “Number 2” in six-pack B and wrote that he was about 95 percent certain that “Number 2” was “the guy” and “he has the same long face and short hair.” Later, Harden brought a third six-pack to Tsujimoto’s workplace. Tsujimoto wrote that “Number 4 was close but Number 2 from the other sheet looked more like him.” Before looking at the six-packs, Tsujimoto read the admonition on the back. After dark, about one and one-half to two hours after viewing the third six-pack, the police picked Tsujimoto up at work and drove him somewhere. They did not tell him where they were going. They parked behind a vehicle that resembled the getaway vehicle. Harden told Tsujimoto that they had a person or suspect in custody, “to take time, really think about whether or not it was him. And that I don’t have to I.D. him if I don’t feel it was the correct person.” Someone turned a spotlight toward “the person on the curb.” Tsujimoto felt he was supposed to look at the person illuminated by the spotlight. Tsujimoto was then able to identify the man. Without the spotlight it was too dark to see the person’s face. There were other people, some who were in police uniforms and others who were not, near the man. Tsujimoto testified that viewing the photographs earlier in the day helped him make an identification because “it kept me thinking about his facial features throughout the day, trying to keep his face sort of fresh in my mind.”
Harden testified at the hearing that “Number 2” in six-pack B was not a suspect, just a randomly inserted photograph. Before he and Tsujimoto arrived at the showup, he read the following admonition to Tsujimoto: “The person you are about to see may or may not be the person who committed the offense. You are not obligated to pick anyone. We are interested in clearing the innocent as well as finding the guilty.” Harden did not believe he asked Tsujimoto if he understood the admonition.
The trial court concluded that the showup was not unduly suggestive or likely to taint an in-court identification. The court noted it relied upon Tsujimoto’s youth and excellent vision, his observation of defendant’s face, his efforts “to keep a memory in his own mind about what he saw, ” and the timing of the showup and fast-developing investigation. The court also cited the need for prompt identification or elimination of suspects, as the police had come up with the names of three men who might be associated with the getaway vehicle. Tsujimoto’s selection of a different person in six-pack B did not make the showup unduly suggestive, but simply went to its weight and gave the defense “a lot to work with” in arguing misidentification by Tsujimoto.
Defendant contends that the admission of Tsujimoto’s pretrial identification of defendant at the field showup violated his right to due process. He does not challenge the admission of Tsujimoto’s trial identification of defendant.
To determine whether an extrajudicial identification is so unreliable as to violate due process, the court must first determine whether the identification procedure was unduly suggestive and unnecessary. If it was, the court must determine whether the identification was nonetheless reliable under the totality of the circumstances. (People v. Gonzalez (2006) 38 Cal.4th 932, 942.) A pretrial identification procedure is impermissibly suggestive if it creates a very substantial likelihood of irreparable misidentification, that is, it suggests in advance the identity of the person suspected by the police. (People v. Sanders (1990) 51 Cal.3d 471, 508; People v. Ochoa (1998) 19 Cal.4th 353, 413 (Ochoa).) The defendant bears the burden of proving unfairness as a demonstrable reality, not just speculation. (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)
On appeal, we review the trial court’s findings of historical fact deferentially, but “we independently review the trial court’s ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive.” (People v. Gonzalez, supra, 38 Cal.4th at p. 943.)
A single-person showup is not inherently unfair. (Ochoa, supra, 19 Cal.4th at p. 413.) “[S]ingle-person show-ups for purposes of in-field identifications are encouraged, because the element of suggestiveness inherent in the procedure is offset by the reliability of an identification made while the events are fresh in the witness’s mind, and because the interests of both the accused and law enforcement are best served by an immediate determination as to whether the correct person has been apprehended. [Citation.] The law permits the use of in-field identifications arising from single-person show-ups so long as the procedures used are not so impermissibly suggestive as to give rise to a substantial likelihood of misidentification.” (In re Carlos M. (1990) 220 Cal.App.3d 372, 387.)
The showup in this case occurred no more than seven hours after Tsujimoto saw the burglar in the house, while Tsujimoto’s memory of the burglar remained fresh in his mind. Defendant was temporarily detained at his residence, and, as far as the record reveals, the police would have released defendant if Tsujimoto had not identified him at the showup. Thus, the showup benefited both the police and defendant by providing an immediate determination as to whether defendant should be arrested or released. The circumstances surrounding the showup were not so suggestive as to create a substantial likelihood of misidentification. Harden advised Tsujimoto that the person he was going to see might or might not have committed the offense, Tsujimoto was not obligated to pick anyone, and the police were interested in clearing innocent people, as well as finding guilty people. At the hearing, Tsujimoto recounted his understanding that he was not under pressure to identify anyone and should take his time and “really think about whether or not it was him.” The use of artificial lighting did not render the showup unduly suggestive, but simply made it possible to see defendant in the dark. Defendant did not carry his burden of proving that the showup was so unduly suggestive and unfair that it violated due process. The trial court did not err by admitting evidence of Tsujimoto’s identification of defendant at the showup.
Even if we were to conclude that the showup was impermissibly suggestive, we would find Tsujimoto’s identification of defendant sufficiently reliable for admission at trial under the totality of the circumstances. Pertinent factors include “the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.” (People v. Cunningham (2001) 25 Cal.4th 926, 989.)
Tsujimoto got a well-lit, full-face view of the burglar, albeit for just one or two seconds. In his testimony before the jury, Tsujimoto described the burglar as staring at him before fleeing. Because Tsujimoto was searching for the source of the sounds he had heard and discovered a stranger in his home, his attention was necessarily focused upon the burglar. No more than seven hours had elapsed between the time Tsujimoto saw the burglar and the showup. Tsujimoto testified he “had no doubts” about his identification of defendant at the showup and was able to explain the characteristics of defendant’s appearance that matched the burglar. Although defendant argues that “Tsujimoto’s prior description of the intruder was inaccurate, ” the record does not support this assertion. Tsujimoto testified that he told the police that the burglar was “a white male, over six foot, approximately six-two, pretty clean cut hair, buzzed sides.” No one testified about whether, or the degree to which, Tsujimoto’s description to the police matched defendant’s appearance, but the documents from the Department of Justice admitted in the court trial of defendant’s prior conviction and prison term allegations indicate defendant is a white male with height variously recorded as 5 feet 7 inches to 5 feet 11 inches. Tsujimoto testified that he gauged the burglar’s height by his own height and looking at defendant in the courtroom, Tsujimoto testified that defendant appeared to be about 6 feet 2 inches tall. Although Tsujimoto did not select defendant’s photograph from the third six-pack Harden showed him, the photograph was about two years old and Tsujimoto told the police that defendant’s photo “was close” to resembling the burglar. His failure to select defendant’s photograph did not render his identification so unreliable as to require its exclusion. (People v. Contreras (1993) 17 Cal.App.4th 813, 822.) It simply gave the defense a stronger argument for the jury that Tsujimoto misidentified defendant. The totality of the circumstances established the reliability of Tsujimoto’s identification of defendant.
In addition, we note that no prejudice resulted from admission of evidence of Tsujimoto’s pretrial identification of defendant. Tsujimoto also identified defendant at trial, which defendant does not challenge on appeal. Indeed, admission of evidence regarding the showup potentially benefited defendant by allowing counsel to argue that Tsujimoto’s identification at trial was based solely upon the police showing him defendant in a spotlight. And, other evidence tended to show that defendant was the burglar. Tsujimoto recorded the license plate of the vehicle, which was registered to defendant’s wife and found parked outside the apartment in which the police found defendant and his wife. Defendant also exhibited consciousness of guilt by hiding under the bed when the police entered the apartment and announced they were looking for him. Under the circumstances, any arguable error in the admission of the pretrial identification evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S.18, 24 [87 S.Ct. 824]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1119, fn. 22.)
2. Witness’s reference to defendant’s parole officer
On defendant’s motion, the trial court excluded evidence that defendant was on parole.
Mueller was the prosecution’s first witness. On cross-examination, defense counsel asked him several questions about whether and when he had told the police what property he was missing after the burglary. He said the police had been in contact with him “numerous times over the course of the next week” after the burglary. Counsel asked, “About what issues?” Mueller replied, “One time that. Another time that I believe it was the defendant’s parole officer had came [sic] by.” The court called counsel to sidebar, and defense counsel moved for a mistrial.
Outside the presence of the jury, the prosecutor and defense counsel both denied knowing that a parole officer had spoken to Mueller. The court found that Mueller was unaware of the ruling excluding evidence of defendant’s parole status and did not purposely interject that information. The court directed Mueller not to refer to defendant’s parole officer or parole status. Upon questioning by the court, Mueller admitted he did not know defendant and only surmised that the parole officer who came to see him was defendant’s parole officer. The court announced that it would defer ruling on the motion for mistrial, but would strike Mueller’s response, admonish the jury to disregard it, and question Mueller in the presence of the jury to show that the stricken response lacked foundation.
In the presence of the jury, the court stated the following: “Before the break, as you recall the witness made a reference to a parole officer and we went sidebar and took a break. I followed through with some questions of the witness and I’m going to ask the witness these questions in your presence so you’re able to listen to the witness’s responses. I’m going to do that myself because this is what has occurred and I’m going to follow through.” In response to a series of questions by the court, Mueller testified that he did not know defendant, had never met him, and did not even know defendant’s name. The court asked, “Do you have any basis upon which you yourself would have to conclude that the defendant has a parole officer?” Mueller replied that he did not. The court then stated, “Based on this, I want the jury to be now advised that that witness’s response about a parole officer is stricken. It is stricken and you are absolutely instructed to disregard that response. That is an order of the court.”
Before trial resumed on the next court date, the court heard argument from the parties regarding the motion for mistrial, then denied the motion. The court explained that it found no prosecutorial misconduct and felt that the situation was much better than if a police officer had made the statement because Mueller did not know defendant and “acknowledge[d] in front of the jury that he has no reason to believe that Zamagni is in fact on parole. The jury has heard that and then is told disregard it, it’s stricken. [¶] And I watched and the jury got it. Oh, that’s a big nothing. And so that was sort of my read on this panel was oh, not like there’s some secret. They’re actually then able to be understanding of what occurred as opposed to now living with this dark cloud hanging over everybody’s head. It’s just gone. It just blew up and disappeared, in my evaluation.” The court expressed confidence “that this panel will abide by my court’s ruling and just move on from it.”
Included in the jury charge was CALCRIM No. 222, which includes the following sentence: “If I ordered testimony stricken from the record you must disregard it and must not consider it for any purpose.”
Defendant contends the trial court erred by denying his motion for mistrial and that the error violated due process.
The trial court should grant a mistrial if it “‘is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’” (People v. Jenkins (2000) 22 Cal.4th 900, 985–986, quoting People v. Haskett (1982) 30 Cal.3d 841, 854.) “Whether a particular incident is incurably prejudicial requires a nuanced, fact-based analysis.” (People v. Chatman (2006) 38 Cal.4th 344, 369–370.) We review the denial of a motion for mistrial for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 953, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Reference to a non-testifying defendant’s parole status may constitute prejudicial error that warrants granting a mistrial. (People v. Allen (1978) 77 Cal.App.3d 924, 934–935 (Allen).) Evidence that defendant was on parole was inadmissible and had been excluded by the trial court. “The only question to be determined on appeal is whether the trial court cured the impropriety of the statement by ordering the volunteered answer stricken and... admonishing the jury” to disregard Mueller’s reference to a parole officer and by exposing Mueller’s lack of personal knowledge regarding defendant’s parole status in the presence of the jury. (Id. at p. 934.)
“A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. [Citations.] It is only in the exceptional case that ‘the improper subject matter is of such a character that its effect... cannot be removed by the court’s admonitions.’ [Citation.]” (Allen, supra, 77 Cal.App.3d at pp. 934–935.) “The finding of exceptional circumstances depends upon the facts in each case. ‘An improper reference to a prior conviction may be grounds for reversal in itself [citations] but is nonprejudicial “in the light of a record which points convincingly to guilt....”’” (Id. at p. 935.) Allen applied the standard of People v. Watson (1956) 46 Cal.2d 818, 836, to determine whether a prosecution witness’s testimony that Allen was on parole was so prejudicial that the defendant’s mistrial motion should have been granted: “An examination of the record reveals an extremely close case in which the jury had to make its fact determination based upon the credibility of [Allen] and his witnesses and of the credibility of the prosecution’s witnesses. In the light of these facts, it is reasonably probable that a result more favorable to [Allen] would have been reached had the prejudicial information of [Allen’s] parole status not been divulged to the jury.” (Allen, supra, 77 Cal.App.3d at p. 935.) Crucial to the court’s decision in Allen was an additional error by the trial court in improper limiting cross-examination to preclude Allen from questioning an accomplice, who implicated Allen and testified for the prosecution, regarding the accomplice’s commission of three other robberies and his expectation of leniency in exchange for his testimony against Allen. (Id. at pp. 933–934.) The two errors combined enhance the credibility of the prosecution’s witness while tainting the defense.
In People v. Stinson (1963) 214 Cal.App.2d 476, a police officer testified that the defendant’s “‘parole officer came down and talked to him.’” (Id. at p. 479.) The trial court immediately struck the testimony and ordered the jury to disregard it, but delayed ruling upon the defendant’s motion for mistrial, so that the defendant was effectively forced to testify. (Id. at pp. 479–481.) The appellate court observed, “Improper evidence of prior offenses results in reversal only where the appellate court’s review of the trial record reveals a closely balanced state of the evidence. [Citations.] The same error, viewed in the light of a record which points convincingly to guilt, is consistently regarded as nonprejudicial.” (Id. at p. 482.) The court found that the trial record pointed “emphatically to defendant’s guilt, ” with or without the defendant’s forced testimony. (Id. at pp. 482–483.)
The erroneous introduction of evidence of a defendant’s criminality has been found to have been harmless in numerous additional cases, such as People v. Ledesma (2006) 39 Cal.4th 641, 681–683 (reference to defendant being on death row after earlier conviction in same case); People v. Avila (2006) 38 Cal.4th 491, 572–574 (improper reference to defendant’s recent imprisonment); People v. Valdez (2004) 32 Cal.4th 73, 124–125 (police officer’s inadvertent disclosure that he had interviewed defendant in prison); People v. Bolden (2002) 29 Cal.4th 515, 554–555 (police officer’s testimony that he went to parole office to get defendant’s address); and People v. Harris (1994) 22 Cal.App.4th 1575, 1580–1581 (witness testified that defendants’ parole officers called her).
Unlike the situation in Allen, supra, 77 Cal.App.3d 924, the present case did not present “an extremely close case in which the jury had to make its fact determination based upon the credibility of the appellant and his witnesses and of the credibility of the prosecution’s witnesses.” (At p. 935.) The defense put on no evidence; defendant’s credibility was not directly in issue. Although the defense contested the accuracy and veracity of the prosecution’s witnesses—primarily the accuracy of Tsujimoto’s identification of defendant, none of the witnesses had been impeached by prior misconduct or prior inconsistent statements. Thus, unlike Allen, the jury was not faced with competing factual accounts from the prosecution and the defense or a closely matched credibility contest.
Instead, the key determination for the jury was whether or not it believed Tsujimoto correctly identified defendant as the burglar. Tsujimoto’s identification was supported by his description of the getaway vehicle and his recording of its license plate number. The vehicle was registered to defendant’s wife and parked outside the apartment in which the police located defendant a few hours after the burglary. Tsujimoto identified the vehicle when he saw it outside that apartment and identified defendant at the showup and at trial. When the police entered defendant’s apartment and announced that they were looking for him, he hid under the bed, thereby exhibiting consciousness of guilt. The trial court not only struck Mueller’s reference to defendant’s parole officer and admonished the jury to disregard it, the court attempted to demonstrate to the jury that Mueller did not know defendant and had no basis for concluding that he had a parole officer, thus undermining the foundation for and credibility of the stricken testimony. We presume the jury obeyed the trial court’s admonition to disregard the stricken testimony. (People v. Hinton (2006) 37 Cal.4th 839, 864; Allen, supra, 77 Cal.App.3d at p. 934.) Even if the jury could not completely dispel Mueller’s brief reference to defendant’s parole officer, it is not reasonably probable that the jury would have reached a result more favorable to defendant had it not heard about his parole status. In short, unlike Allen, this was not an “exceptional case” requiring the trial court to grant a mistrial. As in Stinson, the record pointed “emphatically to defendant’s guilt.” (214 Cal.App.2d at p. 482.) Nor can it be said that the inadvertent testimony rendered defendant’s trial so fundamentally unfair as to fatally infect the trial and thereby violate due process. (Lisenba v. California (1941) 314 U.S. 219, 236 [62 S.Ct. 280].)
3. Sufficiency of evidence to support multiple burglary convictions
At the court’s request, the parties filed supplemental briefs addressing the sufficiency of the evidence to support two separate burglary convictions for entry into three unlocked rooms within the house.
Defendant contends that he committed just one burglary because “there was no evidence that any of [the three roommates] had a lock on his or her bedroom door.” The Attorney General contends defendant committed, in addition to an attempted burglary, two completed counts of burglary because each roommate had a lock on his or her door and each roommate’s room constituted a separate, individual dwelling place, even though only Tsujimoto had locked his door on the day of the burglary.
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
Burglary may be committed by entering a structure or a room within a structure, and “a different burglary occurs each time the perpetrator enters into a separate dwelling space if a new and separate danger is posed to each of the occupants upon entry into each dwelling.” (People v. Richardson (2004) 117 Cal.App.4th 570, 574.) “Entry into multiple rooms in a single structure has been held to constitute separate burglaries for the purposes of sections 459 and 460 where separate dwelling places were established by occupants who had separate, reasonable expectations of protection against unauthorized entry.” (Ibid.) Multiple burglary convictions have been upheld for entry into separate, locked classrooms in a school (People v. Elsey (2000) 81 Cal.App.4th 948, 954–963), separate rooms in a college dormitory (People v. O’Keefe (1990) 222 Cal.App.3d 517, 520–521), and separately leased offices in a commercial building (People v. James (1977) 19 Cal.3d 99, 119). A burglary conviction was also upheld where a resident allowed the defendant to enter a house being operated as a boarding house and the defendant then broke into a locked bedroom that was rented to a different resident. (People v. Wilson (1989) 208 Cal.App.3d 611, 614–616.) But in Richardson, the court reversed one of two burglary convictions that were based upon entry into each unlocked bedroom in a two-bedroom apartment occupied by two friends. The court explained, “[T]he burglary of different unlocked rooms in a single-family residence constituted a single burglary. The policy of protecting occupants of separate dwellings will not be forwarded by characterizing the crime as a multiple burglary. Since the two women shared a two-bedroom apartment, without locks on their doors, they cannot have had a separate, reasonable expectation of protection against an unauthorized entry....” (117 Cal.App.4th at p. 575.)
Tsujimoto testified that his bedroom door was locked. Defendant attempted to open the door, but did not gain entry. This was the basis for defendant’s conviction of attempted burglary in count 1. By keeping his door locked, Tsujimoto evinced a separate reasonable expectation of protection against an unauthorized entry. The record thus supports an attempted burglary conviction separate from one burglary conviction based upon entry into the house itself.
The record contains no evidence that any of the other three rooms from which defendant took property were locked. Indeed, the record tends to show that these rooms were not locked. Mueller testified that there was a lock on his office door, but he only locked it when guests were at the house. As far as the record reveals, there were no guests at the house on December 12, and Mueller did not lock his office door before leaving for his meeting that morning. Horlitz testified that there was a lock on her bedroom door, but she did not have the key to it, which indicates she did not lock her bedroom door before leaving for school. Defendant’s success in entering the office, Mueller’s bedroom, and Horlitz’s bedroom and taking property from each of these rooms also tends to show that the doors to these room were not locked because defendant apparently made no attempt to unlock Tsujimoto’s bedroom door after trying the handle and finding the door locked. The mere presence of unused locks on Mueller’s office door and Horlitz’s bedroom door did not constitute substantial evidence supporting a finding that Mueller and Horlitz had separate reasonable expectations of protection against an unauthorized entry into those rooms, separate and apart from entry into the house. The record thus does not support two separate burglary convictions for entering both the house itself and Mueller’s and Horlitz’s rooms. One of the two burglary convictions must be reversed for insufficient evidence. Because the sentence on count 3 is concurrent, we reverse count 3 to avoid the necessity of resentencing.
DISPOSITION
Count 3 is reversed and may not be retried. The judgment is otherwise affirmed.
We concur: ROTHSCHILD, J., JOHNSON, J.