Filed 11/25/13 P. v. Lout CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOSEPH DANIEL LOUT,
Defendant and
Appellant.
F064129
(Super.
Ct. Nos. BF136097B & BF138306A)
APPEAL from
a judgment of the Superior Court
of
Humphrey, Judges.
title="">*
Eleanor M.
Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and Caely E.
Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In Kern County Superior Court case No. BF136097B, a
jury convicted defendant Joseph Daniel Lout of
was found to have suffered a prior conviction under the “Three Strikes†law
(§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and to have served two
prior prison terms (§ 667.5, subd. (b)). His request to dismiss his prior strike
conviction was denied, and he was sentenced to a total of 15 years in prison,
and ordered to pay various fees, fines, and assessments.
In Kern
County Superior Court case No. BF138306A, defendant was charged by
complaint with 23 felony offenses committed while he was on bail
(§ 12022.1) in case No. BF136097B.
The complaint further alleged defendant had suffered a prior strike conviction
and served three prior prison terms. He
subsequently pleaded nolo contendere to counts 4 (forgery; § 470, subd.
(d)), 12 (second degree burglary; § 460, subd. (b)), and 23 (possession of
a firearm by a felon; former § 12021, subd. (a)(1)), and admitted the
prior strike conviction, on condition that the remaining charges and
allegations would be dismissed and he would receive a four-year term that would
be served consecutively to his sentence in case No. BF136097B. Defendant was sentenced in accord with the
terms of the plea bargain.
name="_ftnref4" title="">[3]
Defendant
challenges his conviction for first
degree burglary on various grounds. We hold that a determination by a
municipality that a structure is unfit for occupancy does not, in and of
itself, preclude a first degree burglary conviction. First degree burglary is an offense against
habitation, not an offense against legal habitability.
We further hold, however, that the
evidence was insufficient to establish the house was an inhabited
dwelling. The house had not been lived
in on a fulltime basis for several years, the owner did not consider it to be
“livable†and, although the owner intended to move back into the house at some
point several years into the future, at the time of defendant’s entry, the
house was merely a storage facility for some of the owner’s belongings.
We reject defendant’s assertion the
evidence was insufficient to establish he entered the house with the intent to commit larceny or any felony. We find the burglary occurred and was of the
second degree. We modify the conviction
accordingly and remand the matter to the trial court for resentencing.
FACTS
I
Evidence
Around noon
on March 20, 2011, Bakersfield Police Officer Guinn was dispatched to a house
in the 6100 block of Quaking Aspen in response to a call regarding suspicious activity.
When he arrived, he observed a white
Mitsubishi parked directly across the street from the house.
Guinn and
Officer Wimberly, who arrived shortly after, walked to the front of the
residence. On the front door, Guinn
observed a large yellow sticker placed by Bakersfield Code Enforcement, warning
it was a misdemeanor to occupy the house because it was unsafe. Just north of the front door was a window; a
screen was on the ground immediately below it and the window was open
approximately four or five inches.
Guinn
pushed the window all the way open, stuck his head in, and yelled that they
were from the Bakersfield Police Department and that anyone inside was to make
themselves known. He made this
announcement twice, but got no response. Guinn then entered through the window. A puppy came running up from inside the house,
and Guinn observed the first subject, subsequently identified as Zach Olsen, in
the main family area. Guinn asked if
there was anyone else inside the residence; Olsen said he did not know.
Guinn heard
a sound coming from the hallway that led to the garage. He illuminated the area with his flashlight,
and observed defendant in the hallway.
The door from the hallway into the garage was open. Defendant was wearing heavy-duty mechanic-type
gloves. Guinn had investigated approximately
100 burglaries, with puppies involved in perhaps three of them. In some, he had happened upon the
perpetrators when responding to the location.
The suspects who wore gloves told him they did so to conceal their
fingerprints. Based on his training and
experience, Guinn believed defendant’s gloves were used for that purpose.
experience, there were houses in Bakersfield that had been abandoned and in
which people (“squattersâ€) stayed for several days, drinking and doing drugs. This particular house contained more property
than houses in which Guinn typically saw squatters.
Officer Mears assisted Guinn and
Wimberly at the scene. The house was in
Mears’s patrol area. Mears had never
seen anyone living in it. The grass in
the yard was tall.
Defendant
and Olsen were placed in the back of Mears’s patrol car, which was equipped
with a recording device. A conversation
between the two was recorded; defendant stated, “I thought that was your
homeboys,†and “I’m fucking pissed.
Fucking, he’s the one that told me to go over there. I would have, fucking, I didn’t want to do it
today. I fucking wish I would have never
laid eyes on that freaking stupid ass.â€
Mears had,
like Guinn, investigated a number of burglaries. He had spoken to individuals who were caught
in the process of burglarizing a home, and who were wearing gloves; those individuals
said they wore gloves in order not to leave fingerprints. Mears saw the gloves defendant was wearing;
he had seen gloves like that on individuals who committed burglaries.
Javier Robledo
was the owner of the house, which he purchased in 1990. He and his family had lived in Inglewood since
1978, but wanted to move out of Los Angeles.
He, his brother, and his mother moved into the house together. His mother died six or seven years before
trial. His brother, the last one to live
at the house, moved back to Los Angeles at least three or four years before
trial. The house was left pretty much
the way it was when Robledo’s mother was living there, with furniture, kitchen
appliances, beds, and clothing remaining inside.
As of the
time of trial, Robledo lived in Inglewood and worked in El Segundo. His job was in the Los Angeles area and he got
tired of living in Bakersfield and commuting to work, so he stayed in Inglewood
during the week. Robledo tried to come
back to the Bakersfield house every weekend, but it was more difficult now that
things were “all messed up.†He no
longer came as often because he could not stay at the house. There was no place to sleep. The last time Robledo checked, there was no
clothing at the house. Someone had
broken in and “pretty much took everything.†When Robledo left the house on weekends, the
front door was locked. He secured what
he could to make it safe so no one could get in, but one or two of the windows
were broken.
As of March
20, 2011, Robledo knew the water to still be connected at the house. He customarily paid the water bill a year at
a time, and had just received a bill prior to trial. He normally tried to pay for the electricity
six months at a time, but was unable to make payments when he came on the
weekends because the offices were closed.
He believed the electricity was no longer connected. Because he could not really use the house, he
was coming once a month to check on it.
He usually just went in and walked around to see if any damage had been
done. He had a friend cut the grass, but
when he saw the property the last time, it appeared the grass had not been cut.
Robledo
planned to make the Bakersfield house his retirement location once he retired
from work. He was almost 57 years old at
the time of trial and the legal retirement age was 67, although he hoped to
retire early, within five to six years. His
intent at the time of trial was to secure the surroundings first, put bars on
the windows, and slowly fix up the things that got damaged, so that he could
live in the house at least on weekends.
That was always his intent, even when he stopped coming every weekend.
Robledo was
aware of a yellow sticker on the door of the house, but he never read it. Normally, he would arrive late in the
afternoon, then just walk around and leave.
He did not stay inside the house because it was not livable. In November 2010, he received, at his
Inglewood address, a letter from the City of Bakersfield, saying he was “in
violation†and that they had done some work on the outside of the house. He paid them for the services they provided. There was also a letter dated July 2010, but Robledo
never received it. The July 2010 letter
was sent to the Quaking Aspen address.
Although Robledo was still receiving mail there, the postal worker would
not leave mail once the mailbox was full.
The first
time Robledo discovered that people apparently were going into the residence
and taking things was on November 8, 2010, the day he paid the City of Bakersfield
for its services. He never prepared a
meal in the house after that date, because everything had been taken away. The last time he slept in the house was also
before that date.
Mark Turk was a code enforcement officer for the City of
Bakersfield. He was familiar with the
Quaking Aspen property. In 2010, the
house was vacant and in a state that rendered it a nuisance, in violation of
the Bakersfield Municipal Code. An
initial inspection was made on May 27, 2010, and a first notice sent. Because the condition was not corrected by
the time of reinspection, a second notice was sent. The City then hired a contractor to clean the
property to correct the public nuisance.
It was abated by the contractor on September 15, 2010.
and Turk was unaware of any current action being taken with regard to the
property.
October 15, 2010, a notice was sent to the property owner that fees were being
filed against the property as a tax lien. The October letter was sent to the address
listed on the tax assessor’s rolls, which was in Inglewood.
When a
house is vacant and does not have utilities, it is common practice to post a
sticker on the door stating the house is not to be entered. A notice of that type was posted on the
Quaking Aspen residence. This gives
police recourse to cite or arrest vagrants or vandals caught trespassing in the
structure. If the owner wants to
rehabilitate the place or make it habitable again, he or she is allowed to go
in during daylight hours, but must first notify the department. The house cannot be occupied after dark,
however. In addition, utilities (meaning
a lawful heat source, hot and cold running water, and electricity) must be
restored before the owner is allowed to inhabit the house. To Turk’s knowledge, one of the reasons the
sticker went on the door at this location was because there were no utilities
there.
Turk had
seen numerous vacant, abandoned houses during the course of his present employment. He found them in various stages, so it was
not rare to find houses that had piles of belongings inside.
Defendant
contends his conviction for first degree burglary cannot stand because the
Quaking Aspen house did not constitute an “inhabited dwelling house†within the
meaning of the foregoing statutes.
“Every person who enters any house
… with intent to commit grand or petit larceny or any felony is guilty of
burglary.†(§ 459.) Burglary of an inhabited dwelling house
constitutes first degree burglary, while all other kinds of burglary are of the
second degree. (§ 460, subds. (a)
& (b).) “‘[I]nhabited’ means
currently being used for dwelling purposes, whether occupied or not.†(§ 459.)
Where the
evidence is undisputed, its legal sufficiency to support a conviction is a
question of law that we review de novo.
(People v. Villalobos (2006)
145 Cal.App.4th 310, 316, fn. 3.) In all
other situations, the test of sufficiency of the evidence is whether, reviewing
the whole record in the light most favorable to the judgment below, substantial
evidence is disclosed such that a reasonable trier of fact could find the
essential elements of the crime beyond a reasonable doubt. (People
v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which
is “reasonable, credible, and of solid value.â€
(People v. Johnson,
of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.†(
425.) An appellate court must not
reweigh the evidence (People v. Culver (1973)
10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve
factual conflicts, as these are functions reserved for the trier of fact (
353, 367). This standard of review is
applicable regardless of whether the prosecution relies primarily on direct or
on circumstantial evidence. (
1125.)
Defendant
first says his conviction for first degree burglary cannot stand because the
house at issue was not legally inhabitable.
It is undisputed that the Quaking Aspen structure could not legally be
occupied. (Bakersfield Mun. Code,
§ 8.80.060.) However, the plain
language of section 459 contains no requirement of legal habitability.
Nor do we
find such a requirement in the legislative intent underlying the burglary
statutes. First degree burglary is “a
serious crime meant to protect important societal policies. [Citations.]â€
(People v. DeRouen (1995) 38
Cal.App.4th 86, 91 (DeRouen),
disapproved on another ground in People
v. Allen (1999) 21 Cal.4th 846, 864-866 & fn. 21.) “‘Cases interpreting the term “inhabited
dwelling house†in section 460 … ha[ve] made it clear that this term should be
construed to effectuate the legislative purposes underlying the statute,
namely, to protect the peaceful occupation of one’s residence.†(People
v. Rodriguez (2000) 77 Cal.App.4th 1101, 1106.) “California’s burglary law ‘stems from the
common law policy of providing heightened protection to the residence. [Citations.]’
[Citation.] 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.]â€
(People v. Villalobos, supra, 145
Cal.App.4th at p. 317.) “‘“Burglary
laws are based primarily upon a recognition of the dangers to personal safety
created by the usual burglary situation — 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.â€â€™
[Citation.] ‘In addition, a
burglary of an inhabited dwelling involves an invasion of perhaps the most
secret zone of privacy, the place where trinkets, mementos, heirlooms, and the
other stuff of personal history are kept.
Society therefore has an important interest in seeing to it that
burglars stay out of inhabited dwelling houses.’ [Citation.]â€
(DeRouen, supra, 38
Cal.App.4th at p. 91.)
“In keeping
with the purpose of the statute, the term ‘“inhabited dwelling houseâ€â€™ has been
given a ‘broad, inclusive definition.’
[Citation.]†(
Cal.App.4th at p. 317.) The purpose
of the statute would not be served by excluding from its protection a residence
that is factually inhabited but illegally so.
(See People v. Rojos (1995) 31
Cal.App.4th 611, 614-615 [occupant need not have possessory right to premises
to render residence “inhabited dwelling houseâ€; dispute over right to occupy
premises, even if a matter for law enforcement, makes no difference as far as
application of burglary statutes].)
966 (Aguilar), on which defendant
relies, does not alter our conclusion.
In that case, the defendant was found inside the victim’s apartment
after the victim and other residents of an apartment building were temporarily
relocated to a hotel because of a fire in one of the units, but before the
victim was notified by apartment management that he would be unable to move
back into his apartment and would need to be transferred to another unit in the
same apartment complex. On appeal, the
defendant claimed he could not be convicted of first degree burglary because
the evidence showed the victim’s apartment was not inhabited at the time of the
burglary, because it was so damaged that it was no longer usable as a residence
and the victim was not permitted to return there to live. (Id.
at pp. 968-969.) The Court of Appeal concluded the argument “must be
rejected because it does not focus on the point of view of the victim at the
time the burglary occurred.†(
irrelevant, of testimony from a city building inspector who examined the
apartment building on the date of the fire and determined the building was
uninhabitable, because, habitability being determined based on the point of
view of the victim, “the technical status of the apartment building under
applicable building codes and regulations was not relevant to whether the
victim’s apartment was ‘inhabited’ within the meaning of section 459 at the
time of the burglary.†(
victim was aware of the building inspector’s opinion, that opinion “could not
have had any effect on the habitability of the apartment from the victim’s
point of view at the time of the burglary .…†(Id.
at p. 973.)
habitable†requirement onto section 459.
Whether a person is legally permitted to live somewhere is not the same
question as whether, from that person’s point of view, the location is used as
a residence. In the present case, there
was some question whether Robledo actually knew the Quaking Aspen house had
been deemed legally uninhabitable.
Defendant was permitted to present evidence on this issue and its effect
on Robledo’s point of view.
Nevertheless,
we agree with defendant that, under the specific facts of this case, the house
was not “inhabited.†Accordingly,
defendant’s conviction for first degree burglary cannot stand.
As we
previously observed, section 459 defines “inhabited†as “currently being used
for dwelling purposes, whether occupied or not.†In People
v. Rodriguez (2004) 122 Cal.App.4th 121, 132, the court compiled a number
of authorities on when a structure is “inhabitedâ€:
“For
purposes of the California first degree burglary statute, a structure ‘need not
be occupied at the time [of entry]; it is inhabited if someone lives there,
even though the person is temporarily absent.’
(2 Witkin & Epstein, Cal. Criminal Law[ (3d ed. 2000)] Crimes
Against Property, § 114, p. 144; see People v. Hughes (2002) 27 Cal.4th 287, 354-355 [apartment was
inhabited even though occupant was in process of moving; her furnishings remained
there, and she was present in apartment during daytime hours];
438 [apartment was inhabited when tenants moved all of their belongings into
it, but had not yet slept in it or unpacked]; People v. Jackson (1992) 6 Cal.App.4th 1185 [dwelling continued to
be inhabited because tenant who intended to move out had not vacated premises
and was still using the house at time of robbery]; People v. Marquez (1983) 143 Cal.App.3d 797, 800, 802 [house
inhabited even though resident, under conservatorship, had been absent for two
and a half years, because resident intended to return]; CALJIC No. 14.52 [‘[an
inhabited dwelling house] is inhabited although the occupants are temporarily
absent’].) A structure that was once used
for dwelling purposes is no longer inhabited when its occupants permanently
cease using it as living quarters, and no other person is using it as living
quarters. (People v. Cardona (1983) 142 Cal.App.3d 481, 483 [house no longer
inhabited when residents had moved and no identifiable person was currently
using it as sleeping quarters][
People v. Valdez (1962) 203
Cal.App.2d 559 [house not inhabited when previous tenant had moved out a week
earlier and new tenant had not moved any belongings into house].)â€
In the
present case, the evidence showed the Quaking Aspen house had not been lived in
on a fulltime basis for several years, since Robledo’s brother moved out. It remained fully furnished, however, and Robledo
had lived there on weekends for a while.
At the time defendant entered the
house, however, this situation no longer existed. Robledo — by his own testimony — could not
“really use the house,†he was only coming about once a month to check on it by
walking around to see if any damage had been done. This situation had existed since at least
June 2010, well before the date of the offense. Although the water was connected, it did not
appear the electricity was turned on. Mail
was still being delivered to the house, but not once the mailbox was full. Robledo last prepared a meal and slept in the
house prior to November 8, 2010, again well before the date of the offense. It was Robledo’s stated intent to make the
house his retirement home, but his anticipated retirement date was several
years into the future. Moreover, Robledo
acknowledged he would have to fix the damage in order to be able to live in the
house on weekends. Despite the fact he
was aware of things being stolen and windows being broken, he had not taken
steps to secure the residence other than locking the front door. In his words, he “[didn’t] stay there because [it
was] not livable.â€
title="">[8]
The Quaking
Aspen structure clearly was not an abandoned dwelling. Neither, however, was it an inhabited one. “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.â€â€™
[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.’
[Citation.]†(
pp. 91-92.)
title="">[9] “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 [as an inhabited dwelling].†(People
v. Villalobos, supra, 145 Cal.App.4th at p. 318.)
Here,
Robledo himself considered the house unlivable, as would any reasonable
person. His plan to fix it up and
someday return was nebulous. In the meantime,
the premises had deteriorated to the point they were declared legally
uninhabitable. (Compare
at pp. 799-800, 801-802 [house was “inhabited dwelling†where resident had
moved to boarding home under conservatorship; despite the fact she had not
lived in house in more than two years and there was doubt she would return, the
house was furnished, entered every day, and maintained].) Even from the victim’s perspective, the
building was not “serving as the functional equivalent of a home away from
home.†(People v. Long (2010) 189 Cal.App.4th 826, 837.)
Additionally, although a victim’s
intent to return and inhabit a dwelling in the future is important (
not the length of absence which controls†(People
v. Marquez, supra, 143 Cal.App.3d at p. 802), no single factor is
dispositive of whether a structure is an inhabited dwelling (see
Cal.App.4th at p. 320). Rather, the
totality of the circumstances must be considered. (See People
v. Hernandez, supra, 9 Cal.App.4th at p. 441.)
Whatever
Robledo’s future plans, at the time of defendant’s entry, the house was not an
inhabited dwelling, but merely a storage facility for some of the Robledo
family’s belongings. In such
circumstances, a reasonable person might hope
those belongings would go unmolested.
There do not exist, however, “the peculiar risks of violence and
resulting injury which inhere in the burglary of a home†— the risks upon which
the Legislature’s distinction between first and second degree burglary was
founded. (People v. Hines (1989) 210 Cal.App.3d 945, 950-951, disapproved on
another ground in People v. Allen, supra,
21 Cal.4th at pp. 864-866 & fn. 21.)
Because the Quaking Aspen house did
not constitute an “inhabited dwelling,†there was insufficient evidence to
support defendant’s conviction for first degree burglary. Principles of double jeopardy prevent
defendant from being retried for that degree of offense. (See People
v. Muszynski (2002) 100 Cal.App.4th 672, 684.) This does not mean, however, that no burglary
conviction can stand. Pursuant to
sections 1181, subdivision 6, and 1260, “[i]f the evidence shows the
defendant not guilty of the degree of the crime of which he was convicted, but
guilty of a lesser degree thereof, or of a lesser crime included therein, the
court may modify the judgment accordingly, without granting or ordering a new
trial. [Citations.]†(People
v. Bechler (1998) 61 Cal.App.4th 373, 378-379; accord, People v. Enriquez (1967) 65 Cal.2d 746, 749 & fn. 1.) “‘The purpose for allowing an appellate court
to modify the judgment to a lesser included offense is to “obviate the
necessity of a new trial when the insufficiency of the evidence only goes to
the degree of the crime.â€
[Citation.]’ [Citation.]†(People
v. Bechler, supra, at p. 379.)
Defendant
says the evidence did not establish a second degree burglary (meaning, we
presume, we cannot modify his conviction accordingly) because there was no
evidence he entered with the requisite intent.
Burglary requires an entry “with the intent to commit larceny or any
felony .… [Citation.]†(People
v. Foster (2010) 50 Cal.4th 1301, 1348.)
Here, the prosecutor proceeded, and the jury was instructed, on the
theory defendant entered “with the specific intent to steal, take, and carry
away the personal property of another … and with the further specific intent to
deprive the owner permanently of that property .…â€
“Because intent is rarely
susceptible of direct proof, it may be inferred from all the facts and
circumstances disclosed by the evidence.
[Citations.] Whether the entry
was accompanied by the requisite intent is a question of fact for the
jury. [Citation.] ‘Where the facts and circumstances of a
particular case and the conduct of the defendant reasonably indicate his
purpose in entering the premises is to commit larceny or any felony, the
conviction may not be disturbed on appeal.’
[Citation.]†(
1236, 1245; accord, People v. Holt (1997)
15 Cal.4th 619, 669.)
Considered
in the light most favorable to the judgment, the evidence — particularly
defendant’s wearing gloves and failing to respond when Officer Guinn ordered
anyone inside the house to make himself known, and his statements to Olsen in
the patrol car — is reasonably susceptible of the conclusion defendant entered
the house with the intent to steal. It
is immaterial that he conceivably only intended to take items of minor value
and did not successfully acquire anything at all. (People
v. Meredith (2009) 174 Cal.App.4th 1257, 1264; People v. Martinez (2002) 95 Cal.App.4th 581, 584-585.) Accordingly, the evidence is sufficient to
uphold a conviction for second degree burglary.
DISPOSITION
The
judgment of conviction in Kern County Superior Court case No. BF136097B is
modified to provide that defendant was convicted, in count 1, of second degree
burglary in violation of Penal Code sections 459 and 460, subdivision (b). As so modified, the judgment of conviction is
affirmed. Sentence is vacated, and the
matter is remanded to the trial court to resentence defendant accordingly. The trial court is directed not to reimpose
an enhancement pursuant to Penal Code section 667, subdivision (a).
The
judgment in Kern County Superior Court case No. BF138306A is affirmed.
_____________________
DETJEN,
J.
WE CONCUR:
_____________________
GOMES, Acting P.J.
_____________________
POOCHIGIAN, J.
name="_ftn1" title="">* Judge
Twisselman presided in case No. BF136097B; Judge Humphrey presided in case No.
BF138306A.
name="_ftn2" title="">[1] All
statutory references are to the Penal Code unless otherwise stated.
Defendant
was charged, in count 2, with second degree burglary. (§ 460, subd. (b).) Jurors were instructed that this was an
alternative to count 1. They made no
finding thereon, and the charge was dismissed.
The
clerk’s minutes of October 21, 2011, and November 29, 2011, the court’s
pronouncement of sentence, and the abstract of judgment erroneously show defendant
was convicted of first degree burglary in count 2, rather than count 1 as
reflected in the verdict.
