P. v. Garrett
Filed 12/26/12 P.
v. Garrett CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CRAIG KAISER
GARRETT,
Defendant and Appellant.
B239107
(Los Angeles County
Super. Ct. No.
YA080544)
APPEAL
from a judgment of the Superior Court of Los Angeles County. Mark S. Arnold, Judge. Affirmed in part and reversed in part.
Marta I.
Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Chung L. Mar and Seth P.
McCutcheon, Deputy Attorneys General, for Plaintiff and Respondent.
* *
* * * *
Appellant
Craig Kaiser Garrett appeals from a judgment entered after a jury found him guilty
of first degree residential burglary
(Pen. Code, § 459, count 1),
name="_ftnref1" title="">[1] resisting a peace officer (§
148, count 2), and attempted first degree residential burglary (§ 664/459,
count 3). In bifurcated proceedings, the
jury found true the allegations that appellant had suffered three prior
convictions, two of which qualified as serious felonies (§ 667,
subd. (a)(1)) and as strikes (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d), the “Three Strikes†law), and two alleged prior prison terms (§ 667.5,
subdivision (b)).
After
denying appellant’s Romero
court sentenced appellant to 35 years to life in
life pursuant to the Three Strikes law on the burglary conviction, plus five
years for each of the two section 667, subdivision (a) serious felony
convictions, and 180 days in county jail for resisting a peace officer, with
180 days credit for time served. A
sentence of 25 years to life for the attempted burglary conviction was stayed
pursuant to section 654.
Appellant
contends (1) that there was insufficient evidence to sustain the convictions
for burglary and attempted burglary, (2) the trial court abused its discretion
in refusing to strike one of appellant’s prior strikes, and (3) appellant was
improperly convicted of both burglary and attempted burglary based on the same
act. The People argue the matter should
be remanded so the trial court can impose or strike the one-year enhancements
under section 667.5, subdivision (b).
We
reverse the conviction for attempted burglary (count 3). In all other respects, the judgment is
affirmed.
Prosecution Case
John
Park lived across the street from Joseph Robinson on West 159th Street in the City of Gardena. On March 10, 2011, at approximately 12:30 p.m. Park looked through
his bedroom window and saw appellant walk up to Robinson’s house, open the
security screen and knock on the front door.
Appellant knocked on the door for a while before moving to the big glass
window in the front of the house.
Appellant looked through Robinson’s front window into the house and then
went back and knocked on the screen door.
No one answered the door and appellant crouched down and sat by the wall
at the front of the house. Park’s view
of appellant was then obscured by a bush at the front of the house.
After
a few minutes appellant got up and looked in the window again. He then walked to the end of the porch,
looked around, and started doing pull ups from a beam attached to the
house. He suddenly “hiked his leg†over
a fence next to the porch and entered Robinson’s backyard. Appellant went towards the back door of
Robinson’s house and disappeared from Park’s view. Park called 9-1-1 and
went outside to his porch when he saw the police arrive.
towards the front of the yard from the garage area at the back. Park yelled and pointed at appellant who ran
towards the back of the pool when he saw Park.
Appellant was wearing brown plaid shorts. Police set up a perimeter around the area and
attempted to locate appellant.
Gardena
Police Officer Nick Beerling responded to the burglary call. He received information that appellant was
seen running in an alley behind West 159th Street, approximately 300 yards west
of the Robinson residence. Appellant ran
towards Officer Beerling, made a sharp turn and ran towards an apartment
complex. He was wearing a white tank
top, gray shirt, and brown plaid checkered shorts. Officer Beerling broadcast his location and
remained at the entrance of the apartment complex for a few minutes until he
was asked to respond to another location.
At approximately 1:00 p.m. Angelica
Hernandez, who lived on West 159th Street, heard police sirens and her dog
began barking. She looked outside and
saw appellant pulling clothes out of her car parked in the driveway. Hernandez ran outside and asked appellant
what he was doing on her property.
Appellant dropped the clothes and ran through the back of the property.
Gardena Police Department Detective
Ixtzia Linares saw appellant on the roof of a residence on the corner of
Normandie and West 159th Street. He was
wearing a white tank top with brown plaid shorts. Appellant ignored verbal commands from police
officers to come down from the roof.
After further unsuccessful attempts to convince appellant to climb down
from the roof, Gardena Police Department Detective Luis Villanueva fired a
rubber bullet which struck appellant in the chest. Appellant was arrested and taken into
custody. Redondo Beach Police Officer
Corey King and his K-9 dog assisted in searching the area. He found a gray T-shirt in the driveway of the
adjacent property which was booked into evidence.
On March 11, 2011, Detective Linares
and other police officers met Robert Bailey at the Robinson residence. Bailey was Robinson’s neighbor and had been
taking care of the house for approximately a year while Robinson was in the
hospital. Detective Linares noticed a
screen missing from the living room window at the back of the house. The screen was not missing when Bailey
inspected the house on March 9, the day before the incident. The screen was found at the bottom of
Robinson’s pool and had been cut. Bailey
had installed new screens for the entire house six months earlier. Detective Linares, who had been trained in
lifting prints, lifted a palm print from the window where the screen had been
removed and booked it into evidence.
Kimberly Swobodzinski, a trained and
experienced forensic technician with the Gardena Police Department, compared
appellant’s booking fingerprint and palm print impression with the prints
lifted by Detective Linares at the scene.
The prints matched.
Defense Case
Gardena Police Officer Yvette Evans responded to the 9-1-1 call
regarding a burglary on West 159th Street on March 10, 2011. She stopped at the Robinson residence and
“did a quick visual of the house.†She
testified that she did not notice anything unusual. She checked the garage and the west and south
sides of the house but did not check all of the back of the house.
DISCUSSION
I. There Was Sufficient Evidence to
Support Appellant’s Conviction for Burglary
Appellant
contends that there was insufficient evidence to support his convictions for
burglary and attempted burglary because he lacked the specific intent to commit
a theft or any felony. Appellant
contends he did not have any burglar tools, did not wear gloves, and was at the
house for approximately 30 minutes “just looking into the window and
exercising.†He argues that there was no
evidence that permits a rational inference that he had the intent to commit a
theft or any felony. We disagree.
In
order to prove that a defendant committed residential burglary, it must be
shown that he or she entered a dwelling with the specific intent to commit a
felony or theft. (§ 459;
1041.) The intent to commit a felony or
theft must exist at the time of the entry.
(People v. Holt (1997) 15
Cal.4th 619, 669.)
Evidence of intent is usually
circumstantial and must support a reasonable inference of the requisite state
of mind in order to support a conviction of burglary. (People
v. Holt, supra, 15 Cal.4th at p. 669.)
The intent required for burglary is usually inferred from all the facts
and circumstances surrounding the crime.
(People v. Lewis (2001) 25
Cal.4th 610, 643.)
When
reviewing a criminal conviction for sufficiency of the evidence, “the court
must review the whole record in the light most favorable to the judgment below
to determine whether it discloses substantial evidence—that is, evidence which
is reasonable, credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.†(People
v. Johnson (1980) 26 Cal.3d 557, 578.)
The standard of review is unchanged when the prosecution relies upon
circumstantial evidence. (
792.) Even if we find that the
circumstantial evidence could reasonably be reconciled with a different
verdict, we do not reverse so long as the circumstances reasonably justify the
outcome reached by the jury. (
11.)
In the present case, the
circumstantial evidence that appellant entered Robinson’s house with the intent
to commit a felony or theft consisted of his being observed by a neighbor
peering in the front window of the house when no one responded to his knocking
on the front door, his crouching down out of view for several minutes by the
house, and his jumping over the fence and entering the backyard of the house
where he was again unseen for several minutes.
Further evidence was a screen which had been affixed to a window at the
back of the house on the day before the burglary that was found at the bottom
of the swimming pool and had been cut, appellant’s palm print on the glass
window from which the screen had been removed, and that appellant left the
scene when the police arrived rather than remaining to give his explanation for
his presence on Robinson’s property.
It was reasonable for the jury to
infer that appellant was casing the house for a burglary through his actions of
knocking on the door, peering in the windows, and waiting for a few minutes to
see if anyone responded. Confident that
the house was empty, appellant then jumped the fence and entered the
property. Appellant proceeded to take
further steps towards the commission of a burglary and it was reasonable for
the jury to infer that the removal of the screen from the window was done to
gain entry into the house and facilitate a theft. (See People
v. Valencia (2002) 28 Cal.4th 1, 11 [the removal of a window screen from a
window is sufficiently invasive to show penetration of the building].)
The absence of burglary tools is not
dispositive. (In re Charles G. (1979) 95 Cal.App.3d 62, 67.) It was also reasonable for the jury to infer
that appellant’s flight from police and the lengths he went to avoid arrest
show a consciousness of guilt. (See
491, 500–501 [unexplained flight from burglary scene implies entry with
unlawful intent].)
In sum, there was sufficient
evidence to support appellant’s conviction of residential burglary.
II. The Trial Court Properly Exercised Its
Discretion in Denying Appellant’s Motion to Dismiss His Prior Strikes
Appellant contends that the trial court abused its discretion by
refusing to dismiss one of his prior strikes.
the California Supreme Court held that a trial court may strike an
allegation under the Three Strikes law that a defendant has
previously been convicted of a serious or violent felony ‘“in furtherance of
justice’†under section 1385, subdivision (a). (People
v. Williams (1998) 17 Cal.4th 148, 159 (Williams).) The term “‘“‘in furtherance of justice,’
requires consideration both of the constitutional rights of the defendant, and the
interests of society represented by the People, in determining whether
there should be a dismissal.
[Citations.]â€â€™â€ (
conviction, “the court in question must consider whether, in light of the
nature and circumstances of his present felonies and prior
serious and/or violent felony convictions, and the particulars of his
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
had not previously been convicted of one or more serious and/or violent felonies.†(Williams,
supra, at p. 161.)
“[A] trial court’s refusal or
failure to dismiss or strike a prior
conviction allegation under section 1385 is subject to review for
abuse of discretion.†(
375 (Carmony).) “[A] trial court will only abuse its
discretion in failing to strike a prior felony
conviction allegation in limited circumstances.
For example, an abuse of discretion occurs where the trial court was not
‘aware of its discretion’ to dismiss [citation], or where the court considered
impermissible factors in deciding to dismiss [citation]. Moreover, ‘the sentencing norms [established
by the Three Strikes law may, as a matter of law,] produce[] an
“arbitrary, capricious or patently absurd†result’ under the specific facts of
a particular case. [Citation.]†(Id.
at p. 378.)
“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 the
legitimate sentencing objectives, and its discretionary determination to impose
a particular sentence will not be set aside on review.â€â€™ [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.Չۉ۪ [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.)
is no showing that the trial court was either unaware of its discretion or
considered impermissible factors. We
cannot say that its ruling was irrational or arbitrary. The record shows that the trial court
considered counsels’ arguments, as well as appellant’s criminal history. Appellant’s prior strike convictions arose
from an attempted robbery in 1991, and a residential burglary in 1998. Appellant downplays the seriousness of his
criminal history and contends that the key fact which the court refused to
consider was that the current offense did not involve violence. But that oversimplifies and misstates the
analysis conducted by the trial court.
Although counsel below characterized appellant’s criminal history as
“not the worst record that we’ve ever seen,†it appears from the record that
appellant’s long criminal history influenced the court’s reasoning. In 1988 as a juvenile, appellant was
convicted of attempted robbery and two counts of burglary. Appellant’s adult criminal history consisted
of a conviction for attempted robbery in 1991, a conviction for receiving
stolen property in 1993, and a conviction for residential burglary in
1998. Appellant received a 13-year
prison sentence for the conviction in 1998 and was on probation when he
committed the current offenses.
We
agree with the trial court’s comment at the sentencing hearing that “in the
grand scheme of things, this is not a serious residential burglary.†But, “the nonviolent or nonthreatening nature
of the felony cannot alone take the crime outside the spirit of the [Three
Strikes] law.†(
328, 344.) Where, as here, a defendant
commits the same type of offense he previously committed, the repetitive nature
of the crime weighs against striking the prior conviction, even if the offense
is not
violent. (See
p. 163 [multiple convictions of driving under the influence];
[multiple convictions of false drug sale].)
As the trial court appropriately noted, this was appellant’s second
conviction for residential burglary, and he did not fall outside the spirit of
the Three Strikes Law “based on his criminal history and his prospects for the
future.â€
The court’s comments leave no doubt
that it fairly exercised its discretion.
“On this record, where the trial court considered the relevant criteria,
including appellant’s lengthy criminal history and the timing and nature of his
offenses, none of which reflect well upon his prospects, we find no abuse of
discretion in the trial court’s refusal to strike one or both of appellant’s
prior felony convictions.†(
541, 555; see People v. Myers (1999)
69 Cal.App.4th 305, 310.)
III. Appellant’s Conviction on the Lesser
Included Offense of Attempted Burglary Must Be Vacated
Appellant
contends he was improperly convicted of attempted first degree residential
burglary in count 3 because it is a lesser included offense of first degree
residential burglary which he was convicted of in count 1. The People concede this point and we agree.
Attempted
burglary is a necessarily included offense of burglary in violation of section
459. “If the evidence
supports the verdict as to a greater offense, the conviction of that offense is
controlling, and the conviction of the lesser offense must be reversed.†(People
v. Moran (1970) 1 Cal.3d 755, 763.)
Accordingly, appellant’s conviction for attempted burglary must be
reversed.
IV. Penal Code Section 667.5, Subdivision (b)
Enhancements
The
People argue that “remand for resentencing is required so that the trial court
may either impose or strike the Penal Code section 667.5, subdivision (b)
enhancements.†We disagree.
The amended
information alleged, inter alia, that appellant had suffered two prior serious
felony and strike convictions (§§ 667, subd. (a)(1); 667, subds. (b)-(i);
1170.12, subds. (a)-(d)) in 1991 for attempted robbery in case No. TA013593,
and in 1998 for first degree burglary in case No. YA035919. It was also alleged that he had served two
prior prison terms (§ 667.5, subd. (b)), one in 1993 for violating his felony
probation for the attempted robbery in case No. TA013593
burglary conviction in case No. YA035919.
The jury found all the enhancement allegations to be true.
In
People v. Jones (1993) 5 Cal.4th 1142
at pages 1144 to 1145 (Jones), the
California Supreme Court determined that when the electorate enacted what is
now section 667, subdivision (a)(1), it did not intend for a prison sentence to
be enhanced for both a prior conviction and for a prison term imposed on that
conviction. The Supreme Court held that
“when multiple statutory enhancement provisions are available for the same
prior offense, one of which is a section 667 enhancement, the greatest
enhancement, but only that one, will apply.â€
(Jones, supra, at p. 1150)
It
is permissible to impose enhancements under both sections 667,
subdivision (a)(1) and 667.5, subdivision (b), if the enhancements are
based on multiple prior convictions that are part of one prison term. (See, e.g., People v. Ruiz (1996) 44 Cal.App.4th 1653, 1666–1671.) That is not the situation here. In this case, each prison term (in 1993 for
attempted robbery and in 1998 for first degree burglary) was based on one
serious felony (robbery and burglary).
At sentencing, the trial court imposed two
5-year prior serious felony conviction enhancements pursuant to section 667, subdivision (a)(1).
The
People correctly point out that the trial court did not address appellant’s
prior prison term enhancements found to be true pursuant to section 667.5,
subdivision (b). But, the two one-year
enhancements for the prior prison terms under section 667.5, subdivision (b)
cannot be imposed for the same offense.
Therefore, had the trial court addressed the enhancements found to be
true it would have come to the same conclusion.
The People’s request that the
case be remanded so that the trial court may either impose or strike the
section 667.5, subdivision (b) enhancements is denied.
DISPOSITION
Appellant’s
conviction for attempted burglary (§ 664/459, count 3) is
reversed and the sentence on that count, including any conviction based
assessments, is vacated. The trial court
is directed to prepare an amended abstract of judgment consistent with this
opinion and to forward a certified copy to the
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________,
Acting P. J.
DOI TODD
We concur:
_______________________, J.
ASHMANN-GERST
_______________________, J.
CHAVEZ
unless otherwise stated.
Court (Romero)
