Filed 9/11/18 In re Sean L. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| In re SEAN L., a Person Coming Under the Juvenile Court Law. |
|
|
THE PEOPLE,
Plaintiff and Respondent,
v.
SEAN L.,
Defendant and Appellant.
| D073297
(Super. Ct. No. J240368) |
APPEAL from a judgment of the Superior Court of San Diego County, Aaron H. Katz, Judge. Reversed in part, affirmed in part.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
BACKGROUND
On August 14, 2017, Sean L. and two friends entered a locked residence belonging to Sean's cousin (victim). They rummaged through the house and eventually entered a detached garage where the victim's parents stay on weekends.
The victim arrived home as the garage was being rummaged through. Sean and his companions ran away. A neighbor got in his truck and chased them down. When a police officer questioned Sean, he gave the officer a false address and lied about his knowledge of the victim's home.
On October 4, 2017, the San Diego County District Attorney charged Sean with three counts of petty theft (Pen. Code, § 484, counts 1, 2 & 4), first degree burglary with a person-present enhancement (Pen. Code, §§ 459, 460, 667.5, subd. (c)(21), count 3), and vandalism under $400 (Pen. Code, § 594, subd. (a)(b)(2)(A), count 5).
The court dismissed counts 1 and 2, and made true findings on counts 3, 4, and 5. It committed Sean to the Breaking Cycles Program not to exceed 150 days, followed by a specific term of probation.
Sean filed a timely notice of appeal.
DISCUSSION
Sean's sole contention on appeal is that there is insufficient evidence to support the true finding on the person-present enhancement. He bases this on the assertion that he had left the victim's home before the victim entered it.
As the People note, the legal question is whether the victim's presence in the house and Sean's presence outside the house satisfy the person-present enhancement. The legal sufficiency of undisputed evidence to support a conviction is a matter of law. (People v. Munguia (2016) 7 Cal.App.5th 103, 109.)
The People agree with Sean that there is no evidence to support the enhancement under the circumstances of this case. Thus, the People concede Sean cannot be subjected to the person-present enhancement. As the People recognize, the garage is detached. Therefore, the garage is not considered part of the main residence. (See People v. Moreno (1984) 158 Cal.App.3 109, 113.)
We have examined the record and agree with the parties. The victim and Sean were never present in the house at the same time. In addition, the garage here cannot be considered part of the residence.
DISPOSITION
The true finding on the person-present allegation is reversed. In all other respects, the judgement is affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
IRION, J.
