P. v. Grunwald
Filed 1/11/13 P.
v. Grunwald CA4/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA DAVID GRUNWALD,
Defendant and Appellant.
G045905
(Super. Ct. No. 10HF1108)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, Carla Singer, Judge.
Affirmed.
John N.
Aquilina, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton, Michael
T. Murphy and Charles Ragland, Deputy Attorneys General, for Plaintiff and
Respondent.
* * *
Subsequent
to finding defendant Joshua David Grunwald not guilty of assault with a deadly
weapon as charged in count one, a jury found him guilty of the lesser included
crime of misdemeanor assault, guilty of inflicting injury on a cohabitant
resulting in a traumatic condition as charged in count two, guilty of making
criminal threats as charged in count three, not guilty of assault with a deadly
weapon as charged in count four, but guilty of the lesser included crime of
misdemeanor assault and guilty of false
imprisonment as charged in count five.
After the jury was
excused, the court took judicial notice
of defendant’s burglary conviction in Arkansas, and
found it to be true. The court sentenced
defendant to state prison for a term of 12 years four months.
Defendant’s contention
there is insufficient evidence to support the court’s finding his Arkansas
conviction is a serious felony under California
law is without merit. We affirm.
I
FACTS
Little need be said
about the underlying facts because they are not relevant here. Suffice it to say that on June 28, 2010, defendant brutalized his girlfriend for 90 minutes after which she
spent three days in the hospital.
In a bifurcated trial,
the court admitted into evidence documents from defendant’s prior conviction in
Arkansas. The information filed in
Arkansas alleged defendant committed “RESIDENTAL BURGLARY, CLASS B FELONY,
5-39-201 AND THEFT OF PROPERTY, CLASS B FELONY, 5-36-103, committed as follows,
to wit: The said defendant, JOSHUA
GRUNWALD, in Carroll County, Arkansas, did unlawfully, [¶] 1) On or about March
25, 2000, did enter or remain unlawfully in a residential occupiable structure
of another person with the purpose of committing therein any offense punishable
by imprisonment, to wit: entered
residence of Terry Eichor with the purpose of committing a
theft. . . . [¶] 2) On or
about March 25, 2000, did knowingly take or exercise unauthorized control over
or make an unauthorized transfer of interest in the property of another person
with the purpose of depriving the owner thereof, to wit: took property in excess of $2,500.00
belonging to Terry Eichor. [¶]
of Arkansas.â€
A document entitled
“PLEA AGREEMENT AND ORDER†was also admitted.
In relevant part, it states:
“DEFENDANT AGREES TO PLEAD (guilty) TO:
[¶] RESIDENTIAL BURGLARY, CLASS B FELONY, 5-39-201 AND THEFT OF
PROPERTY, CLASS B FELONY, 5-36-103â€
The court stated: “Having received each and every one of these
items that have been admitted into evidence, and having reviewed each and every
one, the court now finds that the allegation of prior conviction for a serious
and violent felony; specifically, a strike offense within the meaning of Penal
Code section 667 [subdivisions] (d) and (e) and 1170.12 [subdivisions] (b) and
(c)(1); and further, that the allegation pursuant to Penal Code section 667
[subdivision] (a)(1), based on the same case, has been proven to the court
beyond a reasonable doubt. I do find
those allegations of priors are true.â€
(Unless otherwise specified, all statutory references are to the Penal
Code.)
II
DISCUSSION
Defendant contends there
is insufficient evidence to support the trial court’s finding his prior conviction
in Arkansas is a serious felony under California
law. He argues Arkansas’s
statutes leave open certain possibilities which prevent California from
considering his prior as a strike under the “Three Strikes†law. Defendant further contends the Arkansas
definition of a residence includes a vehicle, whereas in California it does
not.
Pursuant to section 667,
subdivision (d)(2), a strike conviction includes convictions from other
jurisdictions that include all of the elements of a violent or serious felony
as defined in sections 667.5, subdivision (c) or 1192.7, subdivision (c). “A defendant whose prior conviction was
suffered in another jurisdiction is, therefore, subject to the same punishment
as a person previously convicted of an offense involving the same conduct in California.†(People
v. Myers (1993) 5 Cal.4th 1193, 1201.)
In making its determination whether or not a conviction from another
jurisdiction qualifies as a strike in California, the
court may consider “‘the entire record of conviction.’†(Id. at
p. 1200.) “[W]hen the record does not
disclose any of the facts of the offense actually committed, the court will
presume that the prior conviction was for the least offense punishable under
the foreign law.†(People v. Guerrero (1988) 44 Cal.3d. 343, 355.)
“Every person who enters
any house . . . with intent to commit grand or petit larceny or any felony is
guilty of burglary. As used in this
chapter ‘inhabited’ means
currently being used for dwelling purposes, whether occupied or not.†(§ 459.)
person who shall feloniously steal . . . the personal property of another . . .
is guilty of theft.†(§ 484, subd.
(a).) “[T]he language in section 484,
subdivision (a), referring to an intent to ‘feloniously steal,’ reasonably construed,
adopted the common law intent requirement.
That requirement, although often summarized as the intent to deprive
another of the property permanently, is satisfied by the intent to deprive
temporarily but for an unreasonable time so as to deprive the person of a major
portion of its value or enjoyment. The
rule of lenity does not compel a different result.†(People
v. Avery (2002) 27 Cal.4th 49, 58.)
“In Davis, we discussed various factual
circumstances involving arguably temporary takings that courts and commentators
have found constitute theft. We discerned ‘three relevant categories of
cases holding that the requisite intent to steal may be found even though the
defendant’s primary purpose in taking the property is not to deprive the owner
permanently of possession: i.e., (1) when the defendant intends to “sell†the
property back to its owner, (2) when the defendant intends to claim a reward
for “finding†the property, and (3) when . . . the defendant
intends to return the property to its owner for a “refund.â€â€˜ [Citation.]†(Id. at
p. 55.)
Arkansas
Code Annotated section 5-39-201 states:
“(a)(1) A person commits residential burglary if he or she enters or
remains unlawfully in a residential occupiable
structure of another person with the purpose of committing in the residential
occupiable structure any offense punishable by imprisonment. [¶] (2) Residential burglary is a Class B
felony.†Arkansas Code Annotated section
5-39-101 states in part: “(4)(A)
‘Residential occupiable structure’ means a vehicle, building, or other
structure: [¶] (i) in which any person lives . . . .â€
Arkansas Code Annotated section 5-36-103
states: “(a) A person commits theft of
property if he or she knowingly: [¶] (1)
Takes or exercises unauthorized control over or makes an unauthorized transfer
of an interest in the property of another person with the purpose of depriving
the owner of the property; or [¶] (2) Obtains the property of another person by
deception or by threat with the purpose of depriving the owner of the
property.†Arkansas Code Annotated
section 5-36-101 states in part: “(4)
‘Deprive’ means to: [¶] (A) Withhold property or to cause it to be withheld either
permanently or under circumstances such that a major portion of its economic
value, use, or benefit is appropriated to the actor or lost to the owner; [¶]
Withhold property or to cause it to be withheld with the purpose to restore it
only upon the payment of a reward or other compensation; or [¶]
Dispose of property or use it or transfer any interest in it under
circumstances that make its restoration unlikely.â€
“Because
the Tennessee burglary statute requires the intent to commit any felony, and
because in 1982 certain conduct such as a second conviction for marijuana
possession, or sodomy, were felonies in Tennessee but not in California, [the
defendant] contends
requirement of Tennessee’s second degree burglary statute leaves open the
possibility that he acted with an intent that would not have qualified as a felony
for purposes of California’s burglary law.
That theoretical possibility is belied by the record, however. [The defendant] was originally indicted for
first degree burglary in an indictment that alleged he broke into and entered
someone’s house with the intent to take and carry away the owner’s personal
property and to convert those items to his own use and deprive the owner of
their use. In short, [the defendant] was
charged with entering someone’s home in order to commit at least petit larceny,
which meets the definition of first degree burglary in California. [Citations.]
Because the only difference between first and second degree burglary in
Tennessee was whether the crime occurred during the night or the day, and
because California’s burglary statute does not include such a distinction, [the
defendant’s] eventual conviction of second degree burglary based on those
charges does not preclude a trier of fact from finding that the Tennessee
conviction qualified as a serious felony under section 1192.7, subdivision
(c)(18).†(
1273, 1284.)
Defendant says “the
Arkansas element that the accused enter or remain inside the occupiable
structure for the purpose of committing an offense punishable by a term of
imprisonment is not equivalent to the California element that the entry be done
for the purpose of committing a felony offense.†(Capitalization omitted.) Here the charging
allegation filed in Arkansas specifically alleges defendant “entered residence
of Terry Eichor with the purpose of committing theft,†and the plea agreement
established defendant pled guilty to that charge. Just as in Towers, when comparing the out-of-state statute with California’s,
and when also considering the actual facts in the entire record of conviction,
there is no doubt defendant’s out-of-state crime falls squarely within the
definition of first degree burglary in California.
Defendant raises another
theoretical possibility. He argues under
Arkansas law, a residence may include a vehicle. But what Arkansas law actually says is that a
“residential occupiable structure†may include a vehicle where someone
lives. It does not say a residence
includes a vehicle. Here the charging
document states “residence,†a much more specific term than “residential
occupiable structure,†the term used in the Arkansas statute. The word “residence†combined with the
description that it was Terry Eichor’s “residence†connotes the crime was
committed in Terry Eichor’s dwelling place.
Our dissenting colleague contends that Julian v. State (1989) 298 Ark. 302 [767 S.W.2d 300] and
274 [555 S.W.2d 948, 950] require reversal.
But those holdings are distinguishable from the situation we have here
because in both of those cases the issue was whether the structure was
“occupiable†or not. Here we know the
structure was “occupiable†because Terry Eichor dwelled there when the crime
was committed.
Another argument
defendant makes is because the targeted offense in Arkansas was theft, and the
Arkansas statute does not contain all of the elements of California’s theft
statute, Arkansas’s statute is not the equivalent of California’s. Specifically he contends an intent to
permanently deprive is not a requirement in Arkansas, but it is a required
element in California. Under
fails.
The facts from
defendant’s Arkansas conviction are that he “entered residence of Terry Eichor
with the purpose of committing a theft†and that he “took property in excess of
$2,500.00 belonging to Terry Eichor.†As
in Towers, the specific factual
allegations contained in the Arkansas information and guilty plea agreement
form provide sufficient basis for us to conclude defendant’s prior conviction
in Arkansas equates to a conviction of a serious felony in California.
III
DISPOSITION
The
judgment is affirmed.
MOORE,
ACTING P. J.
I CONCUR:
THOMPSON, J.
>
ARONSON, J., Dissenting.
I
dissent from the majority’s conclusion substantial evidence supports the
finding defendant Joshua Grunwald’s prior Arkansas conviction for burglary
qualifies as a serious felony under California Law. A person commits a burglary in Arkansas by
entering an “occupiable†structure, which Arkansas courts define as
encompassing uninhabited dwellings. A
residential burglary in California, however, requires the burglarized building
to be an inhabited dwelling. Because the
record of conviction does not establish the building Grunwald entered was
inhabited, we must presume under the least adjudicated elements test that the
building was an occupiable but uninhabitated structure, which does not satisfy
California’s burglary statute.
Accordingly, I would reverse the trial court’s finding Grunwald suffered
a prior serious felony conviction.
In
determining whether an out-of-state prior conviction involved conduct that
would constitute a serious felony if committed in California, the trier of fact
may consider the entire record of conviction.
(People v. Avery (2002) 27 Cal.4th
49, 53.) The record of conviction is
defined as “‘those record documents reliably reflecting the facts of the
offense for which the defendant was convicted.’†(People
v. Roberts (2011) 195 Cal.App.4th 1106, 1126.) “On an appellate challenge to a finding that
a prior conviction was a strike, where the prior conviction is for an offense
that can be committed in multiple ways, one or more of which would not qualify
it as a strike, and if it cannot be
determined from the record that the offense was committed in a way that would
make it a strike, a reviewing court must presume the offense was not a
strike.†(People v. Watts (2005) 131 Cal.App.4th 589, 596.)
To
prove Grunwald’s prior Arkansas conviction for burglary corresponded to
California’s burglary statute, the prosecution introduced the Arkansas charging
document showing Grunwald was accused of committing residential burglary and
theft. Specifically, the document
alleged Grunwald on March 25, 2000, “did enter or remain unlawfully in a
residential occupiable structure of another person with the purpose of
committing therein any offense punishable by imprisonment, to wit: entered residence of Terry Eichor with the
purpose of committing a theft . . . .
[¶] . . . On or about March 25, 2000, did knowingly
take or exercise unauthorized control over or make an unauthorized transfer of
interest in the property of another person for the purpose of depriving the
owner thereof, to wit: took property in
excess of $2,500.00 belonging to Terry Eichor.â€
The prosecution also introduced a “Plea Agreement and Order†reflecting
Grunwald’s guilty plea to both charges.
The prosecution produced no other evidence, such as a preliminary
hearing transcript or a factual basis for Grunwald’s guilty plea. The trial court found Grunwald’s Arkansas
burglary conviction qualified as a serious felony under the “Three Strikes†law
and as five-year enhancement under Penal Code section 667, subdivision (a)(1).
First
degree residential burglary in California requires proof the residence was
inhabited. “To prove first degree
burglary of an inhabited dwelling, the People must present evidence that the
house is ‘currently being used for dwelling purposes, whether occupied or not.’ (Pen. Code, § 459.) What this means is that a dwelling is
inhabited if the occupant is absent but intends to return and to use the house
as a dwelling.†(People v. Ramos (1997) 52 Cal.App.4th 300, 302, fn. omitted.) In contrast, a person commits a residential
burglary under section 5-39-201 of the Arkansas Code of 1987 Annotated “if he
or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of
committing in the residential occupiable structure any offense punishable by
imprisonment.†(Italics added.) Thus, Arkansas’s residential burglary statute
applies to an “occupiable structure†rather than an “inhabited dwelling.â€
S.W.2d 300], illustrates the point.
There, the defendant was convicted of burglarizing an unrented mobile
home the owner used as storage for business items. The Arkansas Supreme Court rejected the
defendant’s contention insufficient evidence supported his burglary conviction
because the structure he entered was not “occupiable.†The court explained the definition of
“occupiable†did not depend on whether it is being used for a nonresidential
purpose “as long as ‘the nature of the premise’ is that it is
‘occupiable.’†(Id. at p. 304; see also Barksdale
v. State (1977) 262 Ark. 271, 274 [555 S.W.2d 948, 950] [“The fact the
[university student union] building was used for social activities, religious
sessions, and classroom meetings clearly demonstrated that the building was an
‘occupiable structure’â€].)
The
majority apparently assumes the Arkansas prosecutor’s use of the word “residence†in the Arkansas
charging document corresponded to California’s requirement that residential
burglary applies only to an inhabited dwelling.
The possibility the word “residence†was used in this manner falls short
of the substantial evidence necessary to support the trial court’s
finding. Substantial evidence is defined
as “‘“‘evidence which is reasonable, credible, and of solid value—such that a
trier of fact could find the defendant guilty beyond a reasonable
doubt.’â€â€™â€ (People v. Elliot (2005) 37 Cal.4th 453, 466.) “‘“A finding of fact must be an inference
drawn from evidence rather than . . . a mere speculation as to probabilities
without evidence.â€â€™â€ (
891.)
Of
course, it is possible the burglarized structure was an inhabited dwelling, but
the possibility the victim of the Arkansas burglary inhabited the structure is
no substitute for facts. The evidentiary
void leaves open other possibilities.
For instance, when an occupant moves out of a dwelling without intending
to return, “the premises become ‘uninhabited,’†even if property is left
behind. (People v. Hughes (2002) 27 Cal.4th 287, 354;
481, 483-484 [house uninhabited if no longer used for dwelling purposes].) To move past speculating about possibilities,
some evidence is required. (See
820, 824-825 [defendant’s guilty plea to allegation he burglarized the
“‘residence and building occupied by [the victim]’†sufficient to show burglary
of an inhabited dwelling].) The charging
document’s reference to the victim’s residence “‘merely raises a strong
suspicion of the defendant’s guilt [and] is not sufficient to support a
conviction. Suspicion is not evidence,
it merely raises a possibility, and this is not a sufficient basis for an
inference of fact.’†(
250; see People v. Moore (2011) 51
Cal.4th 386, 406 [“That an event could
have happened, however, does not by itself support a deduction or inference it
did happenâ€].)
Thus,
the charging document and Grunwald’s guilty plea shed no light on whether the
burglarized structure was an inhabited dwelling, as required under California
law. We must therefore presume under the
least adjudicated elements test the structure was not an inhabited
dwelling. Consequently, Grunwald’s prior
Arkansas conviction did not constitute a serious felony under California law. I therefore dissent from the majority’s
finding Grunwald suffered a serious prior felony conviction.
ARONSON,
J.
