P. v. Caracci
Filed 1/3/13 P.
v. Caracci CA2/4
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 FOUR
THE PEOPLE,
Plaintiff
and Respondent,
v.
Tony Caracci,
Defendant
and Appellant.
B237643
(Los Angeles County
Super. Ct. No. NA089085)
APPEAL from a judgment of the Superior Court of
County, Gary J. Ferrari, Judge. Affirmed as modified.
Benjamin Owens, 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, Victoria B. Wilson and Seth P. McCutcheon, Deputy Attorneys
General, for Plaintiff and Respondent.
After a jury convicted defendant Tony
Caracci of two counts of first degree
burglary (§ 459)
name="_ftnref1" title="">[1]
and one count of receiving stolen property
(§ 496, subd. (a)), defendant admitted that he had been convicted of a
serious felony within the meaning of the Three Strikes law (§§ 667, subds.
(b) – (i) & 1170.12, subds. (a) – (d)).
The crux of defendant’s appeal is an
attack on one of his two convictions for first degree burglary. First, he contends that the evidence is
insufficient to sustain the conviction because the People failed to prove
beyond a reasonable doubt that the victim’s apartment was inhabited at the time
of the burglary. Second, he contends that prejudicial
instructional error occurred because the jury was not explicitly told that if
it had a reasonable doubt whether the burglary was of the first degree, it must
convict him of second degree burglary.
We reject both of these contentions.
Secondarily, defendant advances two minor claims of sentencing error,
neither of which has merit. Other than
directing preparation of a modified abstract of judgment to correct two minor
omissions noted by the Attorney General, we affirm the judgment.
STATEMENT OF
FACTS
Defendant and Megan Hull (the victim
of the two burglaries) had a passing acquaintance with each other. On one occasion in May 2011, defendant had
been in Hull’s Long Beach apartment. He stayed “a couple hours†but then Hull asked him to leave
because “things got a little awkward and uncomfortable. He started trying to make advances to
[her].†Defendant left no personal
belongings behind and Hull did not give him
permission to return to her apartment.
On May
22, 2011, Hull went to visit a friend in San Dimas, San Bernardino County. She planned to be gone “[j]ust a couple of
days.†As was her custom, Hull left her apartment key
with her next door neighbors, Michael Cairncross and Margaret Kinney so that
they could take care of her cats. Hull typically travels once or
twice a month for “anywhere from two to five days.â€
During the evening of May 23, Kinney
saw defendant outside of Hull’s apartment. Defendant falsely told Kinney that he was
waiting for his girlfriend. The next
morning (May 24), Cairncross saw that a window screen in Hull’s apartment was
missing. Cairncross entered Hull’s apartment and saw that
a window was broken and “the place was trashed.†Cairncross telephoned Hull who returned home. Hull discovered that her
guitar and leather jacket were missing but that defendant’s jacket was now
hanging in her closet.
After Hull spoke with the police,
she “went back to San Dimas with a friend to stay
there,†taking her cats with her. She
did so “[t]o be safe, stay out of Long Beach.†She intended to return to her apartment
“whenever [she] could get the gas money to come out to pick up stuff, [her]
belongings, and get it back over to San Dimas while [she] look[ed] for another
apartment.†She planned on moving out of
the apartment. When Hull left, she again gave her
keys to Cairncross and Kinney.
During the early morning of May 27,
Cairncross and Kinney heard noises coming from Hull’s apartment and contacted
the police. The police came and ordered
the occupant of Hull’s apartment to come outside. Defendant stepped out of the apartment and
was arrested. The police found Hull’s missing leather jacket
on a couch. From inside the jacket, the
police recovered a black wallet containing property stolen from Hull as well as one John
Schomberg. Schomberg’s residence,
located only a few blocks from Hull’s apartment, had been burglarized
approximately a week earlier.
Defendant did not testify and called
no witnesses on his behalf. As set forth
in defense counsel’s closing argument, his theory of the case was that the
People had failed to prove guilt beyond a reasonable doubt. In regard to the May 24th burglary, he argued
that no one saw defendant either enter or leave Hull’s apartment. In regard to the May 27th burglary, he argued
that defendant lacked the intent to steal.
The jury convicted defendant on all
three charges after deliberating for only 45 minutes.
Following advisement and waiver of his
constitutional rights, defendant admitted the Three Strikes allegation, a 2003
conviction for first degree burglary.
The trial court denied defendant’s oral Romero
title="">[2]
motion and sentenced him to an aggregate state prison term of 18 years and four
months.
DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
In this appeal, defendant does not
challenge the sufficiency of the evidence to support his convictions for either
the May 24th burglary or receiving stolen property. He contends only that “the evidence was
insufficient to establish that the May 27, 2011 burglary was first degree
burglary†because “Hull had left the apartment with the intent to never return
to sleep there.†He asks us to reduce
his conviction to second degree burglary.
“When the sufficiency of the evidence
is challenged on appeal, the court must review the whole record in the light
most favorable to the judgment to determine whether it contains substantial
evidence—i.e., evidence that is credible and of solid value—from which a
rational trier of fact could have found the defendant guilty beyond a
reasonable doubt.†(People v. Green (1980) 27 Cal.3d 1, 55.)
Section 460, subdivision (a)
provides: “Every burglary of an
inhabited dwelling house . . . is burglary of the first degree.†All other burglaries are of the second
degree. (§ 460, subd. (b).)
being used for dwelling purposes, whether occupied or not.†In determining whether a dwelling is
inhabited, its use as sleeping quarters is not determinative but, instead, is
merely one circumstance the trier of fact can consider. (People
v. Hughes (2002) 27 Cal.4th 287, 354-355; People v. Hernandez (1992) 9 Cal.App.4th 438, 441.)
The jury was instructed that if it
found defendant guilty of burglary, it “must determine the degree thereof and
state that degree in your verdict.
[¶] There are two degrees of
burglary. Every burglary of an inhabited
dwelling house is burglary of the first degree.
[¶] All other kinds of burglary
are of the second degree.†(CALJIC No.
14.51) The jury was further
instructed: “An inhabited dwelling house
is a structure which is currently used as a dwelling whether occupied or
not. It is inhabited although the
occupants are temporarily absent.â€
(CALJIC No. 14.52.)
Viewing the evidence in the light most
favorable to the judgment, we conclude that substantial evidence supports the
jury’s finding that at the time defendant committed the May 27th burglary,
Hull’s apartment was inhabited. All of
Hull’s property (except for the cats) was still present. Hull had, understandably, left to stay
temporarily with friends because defendant—an individual with whom she had a
passing acquaintance—had just burglarized her home. Although Hull planned to look for another
living space, she had not abandoned her apartment as her home. There was no evidence that she had found another
residence or had given notice to her landlord.
“A formerly inhabited dwelling becomes uninhabited only when its occupants have moved out permanently and do not intend to
return to continue or to resume using the structure as a dwelling. [Citations.]â€
(People v. Villalobos (2006)
145 Cal.App.4th 310, 320, italics added.)
Defendant’s contrary arguments are not
persuasive. His claim that Hull “had
left the apartment with the intent to never return to sleep there†is not
supported by the record. Simply stated,
Hull never testified to that point.
Equally unpersuasive is defendant’s reliance on Cairncross’ testimony
that on May 24, he (Cairncross) did not think Hull “even wanted to spend the
night†because she “was real shaken about staying there, afraid [defendant] was
going to come back. . . . She was
frightened.†That testimony addressed
only Hull’s intent for that specific evening—not her intent to continue to live
in the apartment—and was based upon Hull’s immediate (and well-founded) concern
that defendant would return.
Our conclusion that substantial
evidence supports the jury’s finding that Hull’s apartment was inhabited on May
27 is consistent with public policy.
Because burglary laws are based on the recognition that the crime both
poses a significant danger to personal
safety and involves an invasion of the victim’s privacy, “‘[t]he
“‘“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.’†[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.â€
[Citation.]’†(
p. 355, quoting from People v. DeRouen (1995)
38 Cal.App.4th 86, 91-92.) On this
record, the jury could reasonably conclude that Hull was still using the
apartment as her dwelling and could reasonably expect no unauthorized intrusion
would occur.
Defendant next contends,
relying upon People v. Dewberry
(1959) 51 Cal.2d 548, 555 (Dewberry),
that in regard to the May 27th burglary, the trial court committed prejudicial
error because it did not sua sponte instruct the jury “that it must find [him]
guilty of second degree burglary if it found [him] guilty of burglary but had a
reasonable doubt as to the degree of the offense.†We disagree.
Dewberry
held that “when the evidence is sufficient to support a finding of guilt of
both the offense charged and a lesser
included offense, the jury must be instructed that if they entertain a
reasonable doubt as to which offense has been committed, they must find the
defendant guilty only of the lesser offense.â€
(Dewberry, supra, 51 Cal.2d at
p. 555, italics added.)
Defendant has not cited any relevant
authority for the proposition that second
degree burglary is a lesser included offense of first degree burglary.
error. (People v. Wilkinson (2004) 33 Cal.4th 821, 846, fn. 9.) Were we to consider the issue, we would
conclude that second degree burglary is not a lesser included of first degree
burglary. “Under California law, a
lesser offense is necessarily included in a greater offense if either the
statutory elements of the greater offense, or the facts actually alleged in the
accusatory pleading, include all the elements of the lesser offense,
without also committing the lesser.
[Citations.]†(
117-118, italics added.) In this case,
the difference between the two offenses is the status of the burglarized
structure: inhabited versus uninhabited. The two are mutually exclusive. If a defendant has committed a first degree
burglary, he has not and could not have committed a second degree burglary.
In any event, assuming arguendo that
holding we do not make), no prejudicial error occurred. The jury was instructed to determine whether
the burglary was of the first or second degree and was given the proper
definition of an inhabited dwelling, the predicate to a first degree burglary
conviction. (CALJIC Nos. 14.51 &
14.52.) The jury was further instructed
that if the circumstantial evidence permitted two reasonable inferences, one
pointing to guilt and the other to innocence, it must adopt the interpretation
pointing to innocence (CALJIC No. 2.01) and that unless the evidence
established guilt beyond a reasonable doubt, defendant was entitled to a not
guilty verdict (CALJIC No. 2.90). Taken
as a whole (People v. Burgener (1986)
41 Cal.3d 505, 538), the instructions essentially informed the jury that if it
had a reasonable doubt that the burglary was of the first degree, it should
find defendant guilty of second degree burglary. (See People
v. Musselwhite (1998) 17 Cal.4th 1216, 1262-1263 [failure to submit a
otherwise properly instructed].)
Further, in light of the evidence and
the defense theory of the case, any failure to submit a Dewberry instruction was not prejudicial. “[T]he test of whether the [
of People v. Watson (1956) 46 Cal.2d
818, 836: whether it is reasonably probable
that, in the absence of the error, the result would have been more favorable to
the defendant. [Citations.]†(People
v. Crone (1997) 54 Cal.App.4th 71, 78.)
As explained earlier, substantial evidence established that the
apartment was inhabited on May 27.
Defendant’s theory was not that the apartment was uninhabited so that he
was guilty only of second degree burglary.
Instead, defendant argued that he did not commit any burglary on May 27 because he lacked the intent to steal when
he entered the apartment. After
deliberating only 45 minutes, the jury found defendant guilty of all three
charges. It is therefore not reasonably
probable defendant would have been convicted of second degree burglary instead
of first degree burglary had a Dewberry
instruction been submitted.
CONDUCT CREDITS
Defendant committed his crimes in May
2011. The trial court sentenced him on
September 28, 2011 and ultimately gave him 187 days of presentence credit: 125 days for time served and 62 days of conduct
credit.
In this appeal, defendant contends
that he should be granted an additional 62 days of pre-sentence conduct
credits. He relies upon the version of
section 4019, subdivision (f) enacted in 2011 that increased the award of
conduct credits. However, subdivision
(h) of section 4019 provides that this statutory change “shall apply
prospectively and shall apply to prisoners who are confined . . .
2011. Any days earned by a prisoner
prior to October 1, 2011, shall be calculated at the rate required by the prior
law.†(Italics added.) Defendant acknowledges this language but,
nonetheless, urges that the statute “applies to [his] sentence by virtue of
equal protection.†Our state’s appellate
courts have consistently rejected this argument. We see no reason to add to the discussion
other than to note that we, too, find no merit to the claim. (People
v. Brown (2012) 54 Cal.4th 314, 328-330; People v. Lara (2012) 54 Cal.4th 896, 906, fn. 9;
Cal.App.4th 42, 53-56; People v. Verba
(2012) 210 Cal.App.4th 991, 995; People
v. Kennedy (2012) 209 Cal.App.4th 385, 395-399; and People v. Ellis (2012) 207 Cal.App.4th 1546, 1550-1553.)
D. RESTITUTION AND PAROLE REVOCATION FINES
Defendant requests that we modify the
abstract of judgment regarding imposition of the restitution fine and parole
revocation fine to conform to the amounts stated in the trial court’s oral
pronouncements. We decline to do so
because, as explained below, the record establishes that the amounts stated in
the abstract of judgment accurately reflect the trial court’s intent.
1. Factual
Background
At the sentencing hearing, the trial
court stated: “Pay $200 restitution and
the same amount on parole revocation.â€
However, both the court’s minutes and the abstract of judgment reflected
a different amount: $3,800 for each
fine.
Appellate counsel brought this
discrepancy (as well as an issue regarding calculation of conduct credit) to
the trial court’s attention through a written request. (See fn. 6, ante.) Citing the rule that
in the event of a conflict between the oral pronouncement of judgment and the
written abstract of judgment, the oral pronouncement controls, counsel asked
the trial court to amend the abstract of
judgment to reduce each of the two fines to $200.
The trial court denied the
request. Its minute order explains: “As to the restitution fine and parole
revocation fine of $3,800 each, the court finds that the court’s notes reflect
$200.00 per year for a total of $3,800.
No correction needed.â€
2. Discussion
The general principle is that the
abstract of judgment “does not control if different from the trial court’s oral
judgment and may not add to or modify the judgment it purports to digest or
summarize.†(People v. Mitchell (2001) 26 Cal.4th 181, 185.) Thus, it has been held that when the trial
court fails to mention a prior conviction in pronouncing judgment, a reference
to such a conviction in the abstract of judgment must be stricken because “
may be inferred that the omission [in the oral pronouncement of judgment] was
an act of leniency by the trial court [operating] as a finding that the prior
conviction was not true.†(
706, italics added.) Stated another way,
because entering the judgment in the minutes is simply a clerical function, “
orally pronounced and as entered in the minutes is presumably the result of clerical error.†(People
v. Mesa (1975) 14 Cal.3d 466, 471, italics added.)
The italicized language in these two
Supreme Court cases makes clear that the oral judgment prevails only if there
is no evidence to establish that the trial court’s true intent is that which is
embodied in the abstract of judgment.
Here, such evidence exists. Upon
receiving the defense request to modify the abstract of judgment, the trial
judge consulted his notes and found that his intent had been to impose a $3,800
restitution fine and $3,800 parole revocation fine and that is why both the
court’s minutes and the abstract of judgment reflected those amounts.
notes made for the sentencing hearing, rebutted any presumption that the $3,800
fines in the abstract of judgment were the result of clerical error or that the
court’s oral statement imposing the minimum $200 fines was an act of
leniency. This circumstance therefore
distinguishes the present matter from the cases defendant relies upon to
support his request that we modify the abstract of judgment to reflect $200
fines.
E. IMPOSITION OF ASSESSMENTS AND FEES
The abstract of judgment reflects
imposition of a $30 criminal conviction assessment (Gov. Code, § 70373)
and a $40 court security fee.
(§ 1465.8.) The Attorney
General correctly notes that an assessment and fee should have been imposed for
each of defendant’s three convictions.
(Gov. Code, § 70373, subd. (a)(1); § 1465.8, subd.
(a)(1).) We direct modification of the
abstract of judgment to reflect those requirements.
The
trial court is directed to prepare and forward to the
a modified abstract of judgment reflecting the imposition of three $30 criminal
conviction assessments (Gov. Code, § 70373, subd. (a)(1)) and three $40
court security fees (§ 1465.8, subd. (a)(1)). In all other respects, the judgment is affirmed.
WILLHITE,
Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
undesignated statutory references are to the Penal Code.
13 Cal.4th 497.
