P. v. Long























Filed 4/23/13 P. v. Long CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SIXTH
APPELLATE DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. KHOA KHAC LONG, Defendant and Appellant.

H037564 (Santa Clara County Super. Ct. No. CC775750)

On
retrial after this court reversed a previous conviction, defendant Khoa Khac
Long was again found guilty by a jury of two robberies and one rape perpetrated
against the same victim on two separate occasions. The sole question on appeal is whether the
record contains substantial evidence
that the hotel room in which the victim was plying her trade as a prostitute at
the time on the earlier of these occasions was “inhabited,” such that the jury
could find the robbery to be one of
the first degree. (See Pen. Code, §
212.5, subd. (a).)href="#_ftn1" name="_ftnref1"
title="">[1] In the first appeal we held the evidence
sufficient to sustain such a finding.
Here, although the evidence was weaker in some respects, it was stronger
in one critical respect: the victim’s
testimony that she occasionally slept in the room in question. Based primarily on that testimony we will
conclude once again that the evidence was sufficient to sustain a finding that
the room was an “inhabited portion” of a building as contemplated by the
statute. (§ 212.5, subd. (a).) Accordingly, we will affirm the judgment.

>Background

A. First Robbery

Defendant
was accused of robbing the victim on September
19, 2006, and robbing and raping her on December 3, 2006.
We reversed his original conviction on the ground that the prosecutor
had improperly excused from the jury all persons appearing to be of Vietnamese
extraction. (People v. Long (2010) 189 Cal.App.4th 826, 848 (>Long I).) The following account is derived from the
evidence adduced at the second trial after this court remanded the matter.

The
victim was referred to at trial as Amy T., though that is not her real name; we
will refer to her as Amy. She testified
that in the fall of 2006 she took money for massages and sex in motel and hotel
rooms that she rented in east San Jose.href="#_ftn2" name="_ftnref2" title="">[2] She got customers by advertising in a
Vietnamese magazine. When a customer
called in response to an ad, she would direct him to the hotel she was using,
instructing him to call or text when he arrived. When he reported his arrival, she would give
him her room number.

On
September 19, 2006, Amy was hosting “clients” in a room at the Best Western
Lanai Garden Inn and Suites (Lanai Gardens).
She answered affirmatively to questions whether she “stay[ed]
occasionally” at that facility during the fall of 2006. At about 8:33 p.m., hallway surveillance
cameras recorded a man arriving at her door.
She testified that she went to the door in response to a knock, and
admitted defendant into the room, supposing him to be a client. He entered the bathroom, ostensibly to use
it, and turned on the water “very loud.”
When he emerged he was pointing a handgun at her with a towel over his
hand, and threatening in Vietnamese to kill her. He turned on the TV, also “very loud.” He said he would shoot her if she
screamed. At his direction she lay on
the bed, face down, with her eyes mostly closed. He went through her belongings, which
included a laptop, two cell phones, her passport, and a purse containing
jewelry, her identification, credit cards, and over $1,000 in cash. He told her that he knew where she lived and
would go after her if she called police.
She said she would not do so, but asked him to leave her “paperwork,”
apparently meaning her identification, by her car in the parking lot. She talked him out of tying her up but, at his
direction, removed her dress. He took
nude pictures of her on his mobile phone and told her he would post them on the
internet if she made a big deal of his actions.
At his direction, she again lay face down on the bed while he left the
room. A surveillance camera depicted him
leaving the room at 9:17 p.m.

After
defendant left, Amy found that all her belongings were gone except her car keys
and clothing. She dressed and ran out to
the parking lot, where she found that her stuff was not under her car. She went to the front desk of the hotel and
said she had been robbed. She called a
friend nicknamed “Max.” She described
him as a former client who loved and cared for her and bought her gifts. He testified that he was in love with her,
and did not consider himself to be one of her customers. Now, at her request, he came to the
hotel. At some point thereafter the
police arrived. While questioning Max,
an officer told him that Amy admitted being a prostitute. Max testified that he had refused to believe
it up to that moment, but now began to “see her in [a] different light,” though
he still liked her.

After
this incident Amy continued to ply her trade, but Max became more involved in
her life. According to him, she was
scared by the robbery and called him every day asking him to do various favors
for her. He sometimes brought her
sundries such as toothpaste, mouthwash, or an analgesic, but usually he brought
her food from a Vietnamese restaurant.
He mostly saw her at the Days Inn.
Sometimes he would wait in the parking lot for her to call him. Sometimes she would not call for two hours
and he would leave with the food, but then when she did eventually call he
would usually return with the food.
Sometimes they would just talk and not eat between her customers. Amy told Max that she was going to quit that
line of work.

B. Second Robbery and Rape

On
December 3, 2006, Amy was working in a room at the Days Inn. On that day Max had decided, for the first
time, to rent a room near hers in order, according to Amy, to offer her comfort
and protection. He still had feelings
for her, and when he saw her first customer arrive, he felt awful and
disgusted. He could not bear to watch
other customers arrive, so he walked around the hotel premises and to a nearby
business. At some point he decided he
could not tolerate the situation, and loaded his belongings back into his car;
then he returned them to his room; then he decided he was really going to
leave, and put everything except his laptop back into his car. However he did not want to leave without
telling Amy, so he tried to call her several times. When she did not answer, he “thought maybe is
something wrong.” He approached her
door, but was reluctant to knock.

Meanwhile—apparently
during Max’s irresolute perambulations—defendant had called Amy, representing
himself, inferentially, as a customer.
Not recognizing his voice, she gave him her room number. She heard a knock at her door, but on looking
through the peephole saw nothing. When
she opened the door to peek out, defendant pushed into the room. She started to call for help, but he pulled
out a handgun, shut the door, and pushed her to the floor, threatening to shoot
her if she called for help. Without
being told, she lay on the bed quietly, face down. She heard defendant opening drawers and
looking around. He asked where she had
hidden her money. She said it was under
the toilet. He told her to remove her
clothes, for the purpose—she thought—of inhibiting efforts to escape. At some point he also pulled the phone line
out of the wall. He searched the
bathroom and found $500 or $600. He said
it was not enough. She insisted it was
all she had. He then placed the tip of
the gun against her anus, vagina, or both.
She started to cry and told him that, having learned from the previous
incident, she had stashed the bulk of her cash in her car. She said there was nothing in the room except
her mobile phone and keys; she suggested he take the latter and get the cash
from her car. Instead he said he would
rape her if she did not come up with more money. When she failed to do so, he turned her over
and inserted his penis in her vagina.
Refusing her entreaties to “put protection on,” he eventually ejaculated
on her torso. He told her to turn back
over, then left with her money and cell phone.
A hotel surveillance video showed him walking down the hallway at 7:15
p.m.

A
minute later Amy emerged from her room and saw Max in the hallway. She told him she had been robbed and raped by
the same person. Max, who had seen
defendant walking down the hallway, ran to the hotel parking lot. He saw a gold Acura driving away, and wrote
down its license number. He gave a
written description to Amy, and left.

Amy
reported the incident to police. She
gave them Max’s description of the car and the phone number from which the
robber had called her before the robbery.
The vehicle description led to the car’s owner, who admitted to police
that defendant had borrowed his car and was in a panic when he returned it,
saying it had been used in an armed robbery involving fired shots. A detective found Amy’s cell phone at the
house where defendant had returned the car.
Eleven days after the robbery, Amy positively identified defendant in a
photo lineup. DNA testing revealed that
the semen on her stomach matched his.

C. Defendant’s Testimony

Defendant
testified that he had no idea why Amy accused him of robbing and raping
her. He depicted himself as a regular
customer who had begun seeing her in August 2006. He was first introduced by a mutual friend
and then responded to her advertisements under the name of “Cindy” in a
Vietnamese magazine. He met her three
times at a residence in San Jose, where he paid her $120 to have sex using
a condom. He claimed that the same thing
happened on September 19, 2006, except that he met her in a hotel. He left her room that day carrying a box of
movies he had lent to her earlier. After
that he did not see her so regularly, but he did see her again in a different motel
on December 3, 2006. This time he paid
her $150 to let him forego the condom.
He had left California at the end of December 2006 to work in Atlanta.

D. Amy’s Residence

Three
witnesses at trial described where Amy lived in the fall of 2006. Max described her as “stay[ing]” at the Lanai
Gardens when he first met her, but when asked what he meant by this he alluded
to her prostitution activities. He
recalled her saying that she also rented a room in a family house in San
Jose. He understood her to also have a
room or apartment in Monterey, where she was trying to open a business.

Amy
testified that she kept her personal belongings and clothes in a room she
rented from a family in San Jose. She
rented motel rooms for business.
However, when defense counsel asked her to affirm, with reference to the
Lanai Gardens, that “[y]ou weren’t sleeping there, you weren’t living there,”
she answered, “Sometimes I stay over; sometime I go home. But mostly I going [sic] home.” She testified
similarly on redirect with more general reference to “these hotels,” i.e.,
“Sometime I sleep over; sometime I go in my house.” She answered negatively the prosecutor’s
question whether she would “bring overnight stuff” to the hotel rooms. When asked if she had been planning to go
home on September 19, 2006, she answered, “I don’t pay attention that”—a
construction she used throughout trial to mean that she had no present memory
of the fact in question.

Detective
Pham recalled taking Amy to her residence in San Jose after the second
robbery. She was renting a room in a
residence from a family of four. She did
not want uniformed officers coming there because “she didn’t want the family to
have the impression that she might have been in trouble with the police or with
the law.”

E. Instructions, Deliberations, Verdict

Prior
to submitting the matter to the jury, the trial court instructed that in order
to prove defendant guilty of first-degree robbery, the prosecution had to
“prove that the robbery was committed in an inhabited dwelling.” The court explained this requirement by
saying, “An occupied motel room may be an inhabited dwelling . . . for the
purpose of the preceding instruction.
Whether a motel room is an inhabited dwelling or not is a question of
fact that the jury must decide.”

The
prosecutor argued that the first robbery was of the first degree because the
room at the Lanai Gardens was “a place where [Amy] would reasonably expect to
be free from unwanted intrusion,” where she “control[led] who comes and goes,”
stored personal belongings, and “conduct[ed] intimate personal
activities.” She argued that the robbery
at the Days Inn was also of the first degree because, in addition to these
factors, “occasionally she would sleep there.”href="#_ftn3" name="_ftnref3" title="">[3]


The
jury deliberated a full day and into the next day. In the early afternoon, it submitted a query
to the court, asking, “Can we see the actual requirements of what ‘is’ an
inhabited dwelling[?]” Over defense
objection, the court provided the following written answer at 2:31 p.m. “A dwelling is inhabited if someone lives
there and either is present or has left but intends to return. [¶]
Let me know if you need any more information.”

At
2:45 p.m., the jury submitted a further inquiry: “Was the DA’s explaination [>sic] of a inhabited [>sic] dwelling (sleeping, bathing,
dressing, intimacy) requirements for this or her interpretation of what it
is. Does the person have to
‘live’ there for it to be an inhabited dwelling?”href="#_ftn4" name="_ftnref4" title="">[4] The parties agreed on the following answer,
which was given to the jury in writing. “ ‘Inhabited dwelling’ is a place where people have an expectation
of freedom from unwarranted intrusion into a room in which they intend to store
personal belongings, sleep, dress, bathe, and engage in other intimate personal
activities. No single factor is
determinative of whether a place constitutes an ‘inhabited dwelling.’ [¶] A motel room can be rented as
a place to conduct business legal or illegal.
It is also not uncommon for people to rent motel rooms to conduct legitimate
business transactions. These rooms are
occupied while these transactions take place, but they are not inhabited unless
they are being used as places of repose.”

The jury
deliberated until shortly after 11:00 a.m. on the third day, when it returned
verdicts of guilty of first degree robbery on September 19, 2006 and rape and
second degree robbery on December 3, 2006.
The court sentenced defendant to 8 years, four months in prison. Defendant filed this timely appeal.

>Discussion

I.
>Introduction

A
robbery is of the first degree if “perpetrated in an inhabited dwelling house
. . . or the inhabited portion of any other building.” (Pen. Code, § 212.5, subd. (a).) Similarly, a burglary is of the first degree
if it is “of an inhabited dwelling house . . . or the inhabited
portion of any other building.” (Pen.
Code, § 460, subd. (a).) “Since the
statutes use the same phrases, they should receive the same interpretation.” (Long I,
supra, 189 Cal.App.4th at p. 834,
citing People v. Fleetwood (1985) 171
Cal.App.3d 982, 987.) “Inhabited” is
defined in the burglary statutes as “currently being used for dwelling
purposes, whether occupied or not.”
(Pen. Code, § 459.) Thus the key
question is whether the hotel room where the September 19 robbery occurred was
“being used for dwelling purposes” at the time of the offense.

In
the first trial of this matter the jury found that both the September 19
robbery and the December 3 robbery were robberies of the first degree. (Long I,
supra, 189 Cal.App.4th at p. 831.) On appeal defendant contended, among other
things, that the evidence was insufficient to establish that the hotel rooms
were inhabited dwelling places. (>Id. at p. 833.) We rejected this contention, but reversed the
judgment on another ground. (>Id. at p. 848.)

On
retrial the jury found the robbery of September 19 to be one of the first
degree, but that of December 3 to be robbery of the second degree, a lesser
included offense. Defendant now contends
that the evidence on retrial was insufficient to establish that the room where
the earlier robbery occurred was an inhabited dwelling. If the evidence on retrial had been the same
as at the first trial, our previous decision would establish the law of the
case and we would not be required to revisit the issue. (See People
v. Barragan (2004) 32 Cal.4th 236, 246; People v. Mattson (1990) 50
Cal.3d 826, 850 [decision on previous appeal “controls the
outcome only if the evidence on retrial or rehearing of an issue is
substantially the same as that upon which the appellate ruling was
based”].) But where on remand ‘there is
a substantial difference in the evidence to which the [announced] principle of
law is applied, . . . the
[doctrine of law of the case] may not be invoked.’ ” (>People v. Barragan, supra, 32 Cal.4th at
p. 246; see Mattson, >supra, 50 Cal.3d at p. 853 [“[T]he
law-of-the-case doctrine is inapplicable to the determination of questions of
fact [citation] decided on the basis of new or different evidence in a new
trial following reversal on appeal.”].)

Here,
while we will not adopt defendant’s contention that the evidence on retrial was
weaker than before, we do find the
evidence different enough to preclude application of the doctrine of law of the
case. This merely means, however, that
our previous judgment is not conclusive, and that we must assess the
sufficiency of the evidence as we would in any other case, by analyzing the
contents of the record in light of the governing legal principles: “ ‘In assessing a claim of insufficiency
of evidence, the reviewing court’s task is to “review the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence—that is, evidence that is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.”
[Citation.]’ [Citation.] ‘When reviewing the sufficiency of evidence
on appeal, as long as circumstances reasonably justify the fact finder’s
determination, we must accept it, even though another fact finder m[ight] have
reasonably determined the opposite.’
[Citation.]” (>Long I., supra, 189 Cal.App.4th at pp. 837-838.)

II.
>The Dwelling House Requirement

The
distinction between dwelling houses and other structures arose under the law of
burglary, the purpose of which was “to give security and peace of mind to
people in their residences.” (>Long I, supra, 189 Cal.App.4th at p. 834, citing People v. Villalobos (2006) 145 Cal.App.4th 310, 317.) “ ‘At common law, burglary was
considered ‘an offense against habitation rather than against property. The peace of mind and security of the
residents was sought to be protected, rather than the property.’ [Citation.]
Burglary laws are ‘ “ ‘ ‘based primarily upon a
recognition of the dangers to personal safety created by . . . the
danger that the intruder will harm the occupants in attempting to perpetrate
the intended crime or to escape and the danger that the occupants will in anger
or panic react violently to the invasion, thereby inviting more violence.” ’
[Citation.]” ’ [Citation.] As one court explained, ‘a person is more
likely to react violently to burglary of his living quarters than to burglary
of other places because in the former case persons close to him are more likely
to be present, because the property threatened is more likely to belong to him,
and because the home is usually regarded as a particularly private sanctuary,
even as an extension of the person.’
[Citation.]” (>Villalobos, supra, 145 Cal.App.4th at p. 317; see People v. O’Bryan (1985) 37 Cal.3d 841, 844-845 [“An entry into an
inhabited space is a serious felony because it presents a greater intrusion
upon personal privacy, and a greater risk of violent confrontation, than does
entry into an uninhabited area.”]; People
v. Cruz (1996) 13 Cal.4th 764, 775-776 [“[T]he distinction between first
and second degree burglary is founded upon the perceived danger of violence and
personal injury that is involved when a residence is invaded.”])

The
distinction between dwelling houses and other places was extended to robbery in
order to eliminate a sentencing anomaly whereby a burglar might receive a more
severe sentence for merely entering a residence—even if the occupant was
absent—than he would have received for committing the inherently more violent
crime of robbery in the same place. (>Fleetwood, supra, 171 Cal.App.3d 982, 987.)
The chief rationale for increased culpability is the same in both
cases: “Victims inside buildings are
more vulnerable to felonious conduct than victims out of doors,” and “victims
inside their residences are especially vulnerable.” (Id.
at p. 987.)

Given
these underlying policies, courts have found little reason to question the
treatment of hotel rooms as dwellings for purposes of the law of burglary and,
more recently, robbery. (See >Fleetwood, supra, 171 Cal.app.3d at p. 988, citing Perkins, Criminal Law (3d ed. 1982) p. 257
[“Historically and traditionally, hotel rooms have been included within the
definition of a dwelling house.”].) More
generally, to be found a dwelling house, a place “ ‘need not be the
victim’s regular or primary living quarters’ . . . . [Citation.]
Rather, the ‘ “ ‘ “inhabited—uninhabited dichotomy’ turns
. . . on the character of the use of the building.’ ” [Citation.] . . . “[T]he proper
question is whether the nature of a structure's composition is such that a
reasonable person would expect some protection from unauthorized intrusion.”[href="#_ftn5"
name="_ftnref5" title="">[5]] [Citation.]’
[Citation.] Thus, a temporary
place of abode, such as a weekend fishing retreat [citation], a hospital room
[citation] or even a jail cell [citation], may qualify.” (Villalobos,
supra, 145 Cal.App.4th at pp. 318; >Long I, supra, 189 Cal.App.4th at pp. 834-835.)

III.
>Application

In
the first appeal we relied upon the presence of “substantial evidence” before
the jury “that the victim, by socializing
with a friend and eating meals, used hotel rooms as living quarters,
thereby inhabiting the rooms at the time defendant robbed her.” Long,
supra, 189 Cal.App.4th 826, 838, italics added.) Here the evidence on that subject was
weaker. It indicated only that after the
first robbery Amy seemed to feel insecure and to welcome the attentions of her
friend Max in the form of small errands, which included bringing her food, and
socializing with her between customers.href="#_ftn6" name="_ftnref6" title="">[6] Max testified that he would bring her food
and “[m]aybe stay with her, maybe not,” but more often “go home.” There was no evidence that he joined her in
eating this or any other food. Further,
there was no direct evidence of any dining activity in the room where the
September robbery occurred. Rather it
appeared from Max’s testimony that his bringing food and sundries to Amy only
began after the first robbery, which had “scared” her. While the jury might surmise that Amy had
eaten meals in her rooms before this, including the Lanai Gardens room, the
evidence fell well short of establishing that she “socialized” in that room or
that such meals as she might have eaten there were any more indicative of
habitation than is a lunch eaten by a business executive in his or her office.

This
deficiency in the record, however, was more than made up for by evidence that
Amy sometimes slept in the room where
the first robbery occurred. Asked
whether she was “sleeping” or “living” there, she testified, “Sometimes I stay
over; sometime I go home. But mostly I
going [sic] home.” She testified similarly with more general
reference to “these hotels,” i.e., “Sometime I sleep over; sometime I go in my
house.” This contrasts sharply with the
showing at the first trial, where “[t]here was no evidence of [Amy] sleeping at
a hotel.” (Long I, supra, 189
Cal.App.4th at p. 838.) That lack, we
emphasized, was “ ‘not determinative,’ ” because evidence of sleeping
“ ‘is merely a circumstance used to determine whether a house is
inhabited.’ ” (Id. at p. 836, quoting People
v. Hughes (2002) 27 Cal.4th 287, 354-355.)
This is not to suggest, however, that evidence of sleeping in a place is
unimportant—only that it is not indispensable. The domestic activities shown in >Long I—socializing with a friend and
dining—supported a finding that the room was a “home away from home” and thus
an inhabited dwelling, notwithstanding the absence of evidence that the victim
actually slept there. (>Long I, supra, 189 Cal.App.4th at p. 837)
We also suggested that using a room to engage in the kind of intimate
activities that typically require seclusion and secure isolation—such as sexual
intercourse—supports a finding of habitation, despite the absence of evidence
of sleeping.

While
the use of a place as sleeping quarters is not a necessary condition to a finding of habitation, it may well be a >sufficient basis for such a
finding. We doubt that, generally
speaking, any other single factor weighs as heavily in favor of such a
finding. Indeed we cannot readily
conceive of circumstances in which a finding of first degree robbery would not
be sustained if the robbery occurred in a place used by the victim to sleep
overnight.href="#_ftn7" name="_ftnref7" title="">[7] As the court observed in Villalobos, supra, 145
Cal.App.4th at p. 319, “ ‘We are at our most vulnerable when we are asleep
because we cannot monitor our own safety or the security of our
belongings. It is for this reason that,
although we may spend all day in public places, when we cannot sleep in our own
home we seek out another private place to sleep, whether it be a hotel room, or
the home of a friend. . . .’ [citation].” The court further noted that while a hotel
room used for business purposes might be “ ‘occupied’ ” without being “
‘inhabited,’ ” it may still be an “inhabited dwelling” if it is “also being
used as a place of repose.” (Id.
at p. 321; italics added.)

It
thus appears that what the prosecution case lost in evidence of eating and
socializing activity in the Lanai Gardens room, it more than made up in
evidence that the victim sometimes slept in that room. Indeed this evidence may well explain the
difference between the verdicts on the two counts of robbery, for while Amy
specifically said that she sometimes “stay[ed] over” in the Lanai Gardens room,
there was no similarly specific testimony with reference to the Days Inn
room. At the same time, the minimal
evidence of dining and socializing activity left the jury with little basis on
which to conclude that the second room was an inhabited dwelling.href="#_ftn8" name="_ftnref8" title="">[8]

Defendant
attempts to dismiss the evidence of “stay[ing] over” by contending that the
term “stay” is too vague to establish overnight sleeping. We agree that a passing reference to
“staying” in a room might mean something less than sleeping there. But Amy did not merely say that she
“stay[ed]” in the Lanai Gardens room.
She said that she “stay[ed] over.” That phrase unequivocally refers to sleeping
overnight. (See 16 Oxford English Dict.
(2d ed. 1989) p. 583 [“to stay over (orig. U.S.): to stop overnight”];
Definition of stay over in Oxford Dictionaries (US English) (US),
(as
of Apr. 16, 2013) [“stay over” defined as “(of a guest or visitor) sleep
somewhere, especially at someone’s home, for the night”]; cf. American Heritage
College Dict. (3d ed. 1997) p. 1328 [“stay” as “continue to be in a place or
condition” or “to remain or sojourn as a guest or lodger”]; Merriam-Webster’s
Collegiate Dict. (10th ed., 1999) p. 1150 [“to continue in a place or
condition,” “to take up residence: lodge”].)

The
evidence here also differed from the evidence at the first trial in that Amy
was shown to be renting a room in a house occupied by a family of at least
four. The defense successfully objected
to such evidence in the first trial (see Long
I, supra, 189 Cal.App.4th at p.
832, fn. 5), but here the jury was allowed to consider it. While the jury could certainly find that
Amy’s having a primary residence contributed to a reasonable doubt about
whether her room at the Lanai Gardens was an inhabited dwelling, that fact
could not compel a reasonable juror
to entertain such a doubt. A place
otherwise qualifying as a dwelling house does not lose that status merely
because the occupant has a primary residence elsewhere. Thus a vacation home may be an inhabited
dwelling even when no one is actually occupying it. (People
v. DeRouen, supra, 38 Cal.App.4th 86, 92, disapproved on another point in >People v. Allen, supra, 21 Cal.4th 846,
864, 866, fn. 21.) The sporadic nature
of the owner’s presence may diminish, but it does not eliminate, the concerns
that warrant the enhanced penalties for offenses of the first degree: “The potential danger of an unexpected
intruder into these dwellings, surprising the occupants and inciting violence
is the same potential danger a burglar poses to occupants of their primary
residence. The seriousness of the crime
does not turn on the fortuity of whether the occupant chose one home or the
other on a particular day. . . .
[T]he reasonable expectation of the occupant in protection from
unauthorized intrusions is determinative. . . . [T]he occupant of a vacation home reasonably
expects the same protection from unauthorized intrusions as the occupant of any
other residence.” (DeRouen, supra, at p.
92.)

In
his reply brief defendant asserts that there was no substantial evidence that
Amy “slept in the motel room at issue on
or about September 19, 2006.”
(Italics added.) He emphasizes
that “when asked about whether she slept there on that date, she said, ‘I don’t
pay attention [to] that.’ ” This
testimony distinguishes the case from Villalobos,
where it was “undisputed” that the victim intended to sleep overnight in the
room. (Villalobos, supra, 145
Cal.App.4th at p. 321.) Here, however,
the question whether Amy “planned” to stay overnight assumed a fact not in
evidence, i.e., that the matter was one for premeditation on her part. Amy testified that she “never” brought
“overnight stuff with” her to the hotel room.
Max testified that among the items he brought her on his various errands
were toothpaste and mouthwash. This
evidence would ground an inference that the decision whether to spend the night
in the hotel room was typically an impromptu one, presumably depending on such
factors as the lateness of the hour at which she concluded her prostitution
activities. Moreover the jury could find
some indication that on this particular night, Amy was likely to choose to remain. It is undisputed that defendant entered her
room at 8:33 p.m. Max, who might be
motivated to minimize the duration of the typical customer’s visit, estimated
that they ran from 15 to 25 minutes. But
defendant himself, who professed great familiarity with “how these girls work,”
said that they all follow “the rule, same rule,” concerning the duration of the
encounter: that “when you pay, whether
you ejaculate or not, you have to get it done in 45 minutes. If you go over 45 minutes, you have to pay an
additional $120.”href="#_ftn9" name="_ftnref9"
title="">[9] This would suggest that an encounter
beginning at 8:33 p.m. might not end until 9:18 p.m., and could go later if the
client paid to go overtime. Even then
the day’s work might not end if another customer called before Amy stopped accepting
business. At best she could not expect
to arrive back at her primary home before 9:00 or 9:30 p.m.. She might be disinclined to arrive that late,
given that the house was occupied by a family including at least two young
children, and that she was anxious to avoid giving her landlords any reason to
suspect that she was “in trouble with the police or with the law.” Since it would seem a simple matter to spend
the night in the hotel instead, the jury might infer that by the time defendant
came to her door, she would have expected to do so.

We
do not find it necessary to conclude, however, that the foregoing series of
inferences can support the whole weight of the verdict. In our view even a complete absence of
evidence that Amy was likely to sleep in the room that particular night would not be fatal to the finding of
habitation. Cases have long recognized
that a resident’s temporary absence will not preclude a finding that a place is
an inhabited dwelling for burglary purposes.
“[A] line of authority hold[s] that a building which is in current use
as living quarters but from which the owner is temporarily absent is
inhabited. This construction has been
employed consistently in California [citations], and is in accord with the
common law and the law of most states [citations]. The implication behind such an interpretation
is that the ‘inhabited’—‘uninhabited’ dichotomy turns not on the immediate
presence or absence of some person but rather on the character of the use of
the building. Drawing the distinction
based upon the character of the use of the building meshes with the common law
concept of burglary as a violation of the habitation of living quarters. [Citations]”
(People v. Lewis (1969) 274
Cal.App.2d 912, 918-919.)

Burglary,
of course, can be committed against an unoccupied (but inhabited)
dwelling. Robbery in contrast is a
taking of property from the victim’s “person or immediate presence
. . . by means of force or fear.”
(Pen. Code, § 211; but see People
v. Harris (1994) 9 Cal.4th 407, 422-424 [illustrating breadth of “immediate
presence” element].) In both cases, the
character of the premises depends not on accidents of presence or absence—past,
present, or future—but on the nature of the use to which the place is being put
at the time of the offense. Amy’s
testimony that she sometimes slept in the room established that it was more
than a place of business; it was at least sometimes a “home away from home” (>Long I, supra, 189 Cal.App.4th at p. 837) and a “ ‘place of
repose’ ” (id. at p. 835,
quoting Villalobos, >supra, 145 Cal.App.4th 310, 321). The accident that she might not elect to
repose there on a particular night did not alter the essential character of the
room.

In
Long I, supra,
189 Cal.App.4th at page 838, we suggested that the finding of habitation was
also supported by Amy’s using the room to engage in sexual activities, because
such use independently implicates the concerns underlying the special
protection afforded dwelling places.
Defendant urges us to abandon that premise, draw a distinction “between
commercial and non-commercial sexual activities,” and hold the former not
supportive of a finding of habitation.
In Long I, >supra, at page 838, we distinguished a
case from the District of Columbia which reduced a first degree burglary charge
to second degree burglary because the evidence was insufficient to establish
that the rooms in question were, under the relevant statute, “bona fide
sleeping rooms.” (Jennings v. United States (D.C.App. 1981) 431 A.2d 552, 554, fn.
omitted, citing former D. C. Code 1973, § 22-1801(a); see now D. C. Code, §
22-801(a).) The government there
conceded that it had failed to produce evidence sufficient to bring the rooms
within the statute. (>Id. at p. 555.) “If anything,” the court wrote, “the evidence
indicated a contrary result; the rooms were apparently used solely for purposes
of consummating prostitution transactions and were occupied essentially for
periods of short duration (e. g., 15 minutes to a half-hour).” (Ibid.) We distinguished that case, writing that “by
socializing with a friend and eating meals,” Amy “used [the] hotel rooms as
living quarters, thereby inhabiting [them].”
(Long I, supra, at p. 838.)

The
same distinction might be drawn here, albeit on the ground that Amy slept in
the Lanai Gardens room. However we
reject defendant’s suggestion that the sexual activity that took place in the
room can be entirely disregarded for habitation purposes solely because of its
commercial character. In this state,
“the term ‘ “inhabited dwelling house” ’ has been given a ‘broad,
inclusive definition.’ [Citation.]
” (Villalobos,
supra, at pp. 317-318; >Long I, supra, 189 Cal.App.4th at pp. 834-835.) Sexual activity, compensated or not, is
usually highly private, i.e., typically conducted in a place where the participants
are particularly anxious to avoid intrusions of any kind. Moreover it commonly places the participants
in a state of vulnerability perhaps exceeded only by sleep and chemically
induced stupefaction.

Assuming
the commercial character of prostitution might provide a material distinction
from other sexual activities under some circumstances, we fail to see how it
could be material here. Amy’s commercial
sexual activities, like most sexual activities, took place in an entirely
private space where outside intervention and rescue were exceptionally
unlikely. This might have been less true
if Amy had run her business more like a dentist’s office, making a series of
appointments with customers, who would arrive at her door at prearranged
times. Instead, she provided her
services on an as-needed (and presumably as-available) basis, directing callers
first to the hotel and only giving them her room number when they called to
report their arrival. As a result a
robbery in progress was virtually guaranteed to proceed without risk of
interference. The surveillance videos
here indicate that the robbery in the Lanai Gardens room transpired over a
period of some 45 minutes. We suspect this
is several times longer than the average robbery. The privacy and seclusion of Amy’s room
provided such a luxury of time that defendant felt safe in lingering to force
her to pose for nude photographs. We
doubt that many victims of a bank robbery have been subjected to anything
remotely resembling this indignity, for bank robbers must generally assume the
police are on their way. Such dalliance
was possible here only because Amy occupied a private room, which no one else
was entitled or likely to attempt to enter.
The fact that her occupancy was associated with an illicit business,
itself peculiarly private in nature, does not preclude a finding that the room
was, like most occupied hotel rooms, a dwelling place. The evidence was sufficient to support a
finding beyond a reasonable doubt that the robbery of September 19 was one of
the first degree.



>Disposition

The
judgment is affirmed.









______________________________________

RUSHING, P.J.







WE
CONCUR:











____________________________________

PREMO, J.













____________________________________

ELIA, J.