Opinion
A144909
09-10-2018
THE PEOPLE, Plaintiff and Respondent, v. JERIT DEVON AARON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51411297)
I. INTRODUCTION
Appellant, Jerit Devon Aaron, was charged with, among other things, robbery, sexual assault, attempted first degree burglary, first degree burglary, and two counts of dissuading a witness. The cases were consolidated, and Aaron was convicted of all the charges. He argues that the crimes were of a different class and that the consolidation denied him a fair trial. Aaron also moved for acquittal on the first degree burglary and attempted first degree burglary charges, and both counts of dissuading a witness. He contends it was error for the trial court to deny his motion for acquittal. For the reasons stated below, we find that consolidation of the cases was proper, the trial court did not abuse its discretion, and sufficient evidence supported Aaron's convictions for first degree burglary, attempted first degree burglary, and the two counts of dissuading a witness.
II. FACTUAL BACKGROUND
Aaron was charged with first degree burglary (Pen. Code, §§ 459, 460), assault with intent to commit rape (§ 220, subd. (b)), forcible oral copulation (§ 288a, subd. (c)(2)(A)), two counts of dissuading a witness (§ 136.1, subd. (c)(1)), attempted first degree burglary (§§ 459, 460, subd. (a), 664), robbery (§§ 211, 212.5), assault by force likely to produce great bodily injury (§ 245, subd. (a)(4)), and elder abuse (§ 368). Allegations under the One Strike law, section 667.61, were also charged.
All further statutory references are to the Penal Code, unless otherwise indicated.
The jury convicted Aaron of all charges and found the special allegations to be true. The court sentenced Aaron to an indeterminate term of 25 years to life, plus seven years, eight months determinate, to run consecutively.
Aaron's timely appeal followed.
A. Assault and Robbery—December 2013 ("robbery")
On December 17, 2013, 74-year-old Everildo Argueta was exiting the bathroom of a park near Antioch. Aaron walked up to him and punched him in the face and then in the stomach. Argueta was knocked to the ground where he hit his head on the pavement. Aaron searched through Argueta's pockets, took $50 from him, and left. Argueta had never met Aaron and had no idea why Aaron attacked him.
Meanwhile, Norman Cruz and Armando Cardona were driving by the park and witnessed the crime. They stopped the car to help Argueta, but by the time they reached him, Aaron was gone. Cruz and Cardona helped Argueta, the three of them entered the car, and circled the block, looking for Aaron. Cruz called the police, then got out of the car and began looking for Aaron. He briefly spotted him coming out of a liquor store, but lost sight of him as they attempted to treat Argueta's cuts and abrasions in the bathroom of the liquor store. Cruz told the store manager not to let Argueta leave, and Cruz resumed his search for Aaron.
Cruz eventually saw Aaron and approached him aggressively. When Cruz asked Aaron why he did that to the "old man," Aaron proclaimed, "this is my neighborhood." Aaron asked Cruz if Cruz was also from the neighborhood and challengingly said, "What's up?" When Cruz said he was also from the neighborhood, Aaron punched Cruz in the face. Aaron took off running with Cruz in pursuit, but Cruz tripped, hitting his head and elbow on the pavement. In the meantime, others had joined the chase. They caught up with Aaron, brought him to the ground, and restrained him with zip ties until the police arrived.
B. Attempted First Degree Burglary—April 2014 ("attempted burglary")
At approximately 8 a.m. on April 13, 2014, Gina Brindley was at home sleeping with her young daughter and niece. Someone rang the doorbell, then began banging on the door of her outer security gate. As Brindley left her bed to go to the door, she heard someone on the other side trying to turn the locked door handle to open the security door. She heard the person—whom she later identified as Aaron—say, "let me in." Aaron also stated something like, "I'm trying to switch," or "I'm trying to swish." Brindley opened the inner door and told Aaron, "You have the wrong house." Brindley closed the door, and Aaron left. She testified she was able to observe him face to face for approximately two minutes.
Brindley called the police and took the children to her sister's house. As she returned home, she saw Aaron, standing outside his car in the parking lot of a Burger King. She saw him walk toward a nearby Ramada Inn, then lost sight of him. She called police and provided a description of Aaron. The time was approximately 9:30 a.m.
C. Sexual Assault of Jane Doe—April 2014 ("sex crime")
Soon after Brindley saw Aaron walk toward the Ramada Inn, Jane Doe, a 34-year-old housekeeping supervisor at the hotel, was going to the building's laundry room to pick up curtains that had been washed. The room was normally locked and not accessible to the public or to hotel guests, but it was used to do the laundry from the guest rooms of the 60 to 100 guests who stayed at the hotel nightly.
As Doe entered the laundry room and turned to pick up the curtains, Aaron came out from behind the boiler. He closed and locked the laundry room door and then approached Doe. When she pushed him to get out, he pushed back, knocking the five-months pregnant Doe to the ground. Aaron dragged her by the hair, then proceeded to take off his pants, and demanded she take hers off as well. When she refused, Aaron attempted to force his penis into her mouth, but Doe refused to open her mouth.
Doe attempted to call 911 on her cell phone, but Aaron grabbed the phone out of her hands and threw it across the room. Aaron raised his fist as if to strike her belly and said, "No police. No police." He forced his penis into her mouth for five to ten minutes. He ultimately ejaculated on her uniform. He then ran from the room.
Doe left the room and approached a colleague who called 911 for her. The 911 call was played for the jury, and Doe also testified. She was panicked at trial and had difficulty looking at Aaron in the courtroom. The whitish stain on Doe's top was tested, and the DNA matched Aaron's.
Meanwhile, Brindley was still outside the Ramada Inn and spotted Aaron exiting the Ramada Inn about 45 minutes after his initial entrance. Brindley called the police again, who responded immediately. After police detained Aaron, Brindley identified Aaron while he was sitting in the officer's patrol car.
III. DISCUSSION
A. Parties' Contentions
Aaron argues that joinder was improper, and thus he was denied a fair trial because the robbery and the sex crime were crimes of different classes. He also contends the trial court abused its discretion in denying severance due to the lack of cross-admissibility, the likelihood of inflaming the jury, and the fact that strong and weak charges were joined in a single trial. Last, Aaron attacks as erroneous the trial court's denial of his motion for acquittal regarding the charges of first degree burglary, attempted first degree burglary, and dissuading a witness.
The Attorney General counters that (1) the trial court properly refused to sever the robbery from the sex crime because they were crimes of the same class and both involved vulnerable victims; and (2) sufficient evidence supported the charges of residential burglary of the Ramada Inn laundry room, dissuading witnesses Cruz and Doe, and the attempted burglary of Brindley's apartment, so that the charges were properly sent to the jury for decision.
B. Joinder Principles
Section 954 reads, "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count."
Consolidating charged offenses " 'is the course of action preferred by the law.' " (People v. Soper (2009) 45 Cal.4th 759, 772; see also People v. Ochoa (1998) 19 Cal.4th 353, 409 ["Because consolidation ordinarily promotes efficiency, the law prefers it"].) Joinder saves judicial time and resources and also saves public funds. (Ochoa, at p. 409.) Thus, a defendant can only defeat consolidation on properly joined charges by a "clear showing of prejudice" to establish that the trial court abused its discretion in denying the defendant's severance motion. (Williams v. Superior Court (1984) 36 Cal.3d 441, 447 (Williams); see also People v. Mason (1991) 52 Cal.3d 909, 935; see also People v. Mendoza (2000) 24 Cal.4th 130, 160 (Mendoza).) "A bald assertion of prejudice is not enough." (People v. Kemp (1961) 55 Cal.2d 458, 477.) The following are the joinder factors to be considered: (1) the cross-admissibility of evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. (Mendoza, at p. 161.)
The first step in assessing whether a combined trial was prejudicial is to determine whether evidence from each case would be admissible under Evidence Code section 1101. If so, the inference of prejudice is dispelled. (People v. Balderas (1985) 41 Cal.3d 144, 171-172 (Balderas); see also Williams, supra, 36 Cal.3d at p. 448; see also People v. Walker (1988) 47 Cal.3d 605, 622-623.) A lack of cross-admissibility, however, does not necessarily mean the trial judge abused his or her discretion by joining the cases for trial. (Balderas, at pp. 172-173.)
C. Standard of Review
We review under an abuse of discretion standard. (Balderas, supra, 41 Cal.3d at p. 171.) A reviewing court must evaluate motions for severance in light of the showings made and the facts known at the time of the motion. (Ibid.) Where consolidation satisfies the joinder test, " 'the difficulty of showing prejudice from denial of severance is so great that the courts almost invariably reject the claim of abuse of discretion.' " (People v. Matson (1974) 13 Cal.3d 35, 39.)
D. Evidence Principles
Evidence Code section 1101 (section 1101) assists us in determining what, if any, evidence is cross-admissible. It reads in pertinent part, "(a) . . . evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act."
"Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. [Citation]" (People v. Carter (2005) 36 Cal.4th 1114, 1147.) Additionally, to be admissible under section 1101, subdivision (b), the probative value of the evidence of uncharged crimes "must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Kipp (1998) 18 Cal.4th 349, 371 (Kipp).)
E. Application of Principles
1. The attempted burglary and the sex crime were cross-admissible, and they were connected together in their commission.
Applying section 1101, subdivision (b) to Aaron's case, if these two crimes were tried separately, we find that the sex crime against Doe would be admissible to prove Aaron had the same intent when attempting to burglarize Brindley. The People's theory, set forth in the information, was that Aaron tried to enter Brindley's apartment with the "intent to commit rape or sexual assault." The fact that Aaron sexually assaulted a pregnant woman in the Ramada Inn laundry room fewer than two hours after his stop at Brindley's apartment would support the inference that he had the intent to commit a similar felony at Brindley's (i.e., rape or sexual assault). The record shows that Aaron banged on Brindley's door in the early morning. Even before Brindley opened the door, Aaron was trying to turn the door handle and enter the apartment. After being refused entry and being unable to open the locked outer door, Aaron left and then made his way to the nearby Ramada Inn where he sexually assaulted a pregnant housekeeper in the laundry room. The jury could reasonably infer from these circumstances that Aaron had the same intent with Brindley that he did with Doe. Because section 1101, subdivision (b) applies here, the evidence for these hypothetical separate trials would be cross-admissible. This "dispel[s] any possibility of prejudice" with respect to joinder of these two crimes. (Williams, supra, 36 Cal.3d at p. 448.)
Crimes that occur at " 'different times and places against different victims are nevertheless "connected together in their commission" when they are . . . linked by a " 'common element of substantial importance.' " ' " (Mendoza, supra, 24 Cal.4th at p. 160.) In Mendoza, defendant was charged with residential robbery, four counts of robbery, three counts of kidnapping for purposes of robbery, two counts of commercial burglary, forcible rape and arson with great bodily injury, and murder, involving four separate incidents. (Id. at p. 148.) One incident involved a liquor store robbery, another involved the kidnapping and robbery of three people, a third incident involved two separate burglaries, and the fourth involved the rape, robbery, arson causing great bodily injury, and murder of a woman. The People's motion to consolidate the charges was granted. Defendant was convicted on all counts and sentenced to death. (Ibid.)
Defendant argued the trial court erred in consolidating the charges brought against him in four separate cases and in denying his motion to sever the robbery of a liquor store and the kidnapping and robbery of three people from the murder charge. (Mendoza, supra, 24 Cal.4th at p. 159.) Our Supreme Court disagreed, taking note that defendant's crimes all happened within a short time span. The liquor store robbery happened at 4 p.m. on February 5; the car robbery and kidnapping of three people occurred at 2:20 a.m. the next morning; the commercial burglaries were perpetrated either during the evening of February 6, or early the next morning; the fourth incident, which involved the rape, robbery, and murder of a woman occurred on the afternoon of February 7, between 2 and 3 p.m. (Id. at p. 160.) Finally, the court noted that the liquor store robbery, the commercial burglaries, and the robbery of a woman "all involved the intent to illegally obtain property . . . [therefore, the court found] the "element of intent to feloniously obtain property [ran] like a single thread through the various offenses . . . ." [Citations.]' " (Ibid.)
The attempted burglary of Brindley's apartment and the sex crime against Doe likewise were connected together in their commission. Here, the attempted burglary of Brindley's apartment and the sex crime happened within 90 minutes of each other. Aaron went to Brindley's apartment, attempted to enter her residence, was unsuccessful, and then made his way to the Ramada Inn where he sexually assaulted Doe. What Aaron did on this April day resembles the type of crime spree conduct that often satisfies the "connected together in their commission" requirement of section 954. (E.g., Mendoza, supra, 24 Cal.4th at pp. 159-160; People v. Kelly (1928) 203 Cal. 128, 131-133; see generally, Balderas, supra, 41 Cal.3d at pp. 170-173.) Given the cross-admissibility discussion above, the " ' "common element of substantial importance" ' " here would be the overlap in Aaron's intent to commit sexual assault. This shows that the crimes were connected together in their commission, regardless of the fact that they technically occurred at different places and against different victims. Aaron's felonious intent " '[ran] like a single thread through the various offenses.' " (Mendoza, supra, 24 Cal.4th at p. 160.)
2. The robbery and sex crime are crimes of the same class.
"Same class" has been defined to mean "offenses possessing common characteristics or attributes." (People v. Thorn (1934) 138 Cal.App. 714, 734-735.) Because murder, rape, robbery, and kidnapping are all assaultive crimes against the person, they are "offenses of the same class of crimes," thus satisfying the statutory requirements for joinder under section 954. (People v. Simon (2016) 1 Cal.5th 98, 122, fn. 9.)
Here, the robbery and the sex crime were both assaultive in nature. They also shared common characteristics because they both involved physical violence against vulnerable victims. During the commission of the robbery, Aaron punched 74-year-old Argueta in the face and stomach, knocked him to the ground, causing him to hit his head on the pavement, and ultimately rummaged through his pockets and wallet to rob him. In the sex crime, Doe was visibly pregnant, and Aaron knocked her to the ground and pulled her by the hair before forcing her to orally copulate him. Everything about these two incidents was "assaultive." Accordingly, the requirements for joinder under section 954 were met.
3. Consolidating the robbery and attempted burglary was proper in light of case law and judicial economy policy rationales.
The mere fact that the crimes happened four months apart is not dispositive of the joinder issue. (People v. Feigelman (1924) 65 Cal.App. 319, 320 ["The fact that the two crimes charged against the defendant were committed, the one more than a year after the other, does not in our opinion furnish any ground for the claim that the court abused its discretion in consolidating said actions and causing them to be tried at the same time"].) Offenses involving different victims can be properly consolidated. (See People v. Kelly, supra, 203 Cal. at p. 135 [defendant committed three murders and multiple robberies all on the same day but against different victims. The court held joinder was appropriate].)
Here, while it is not apparent that the robbery and the attempted burglary are in the same class, case law and the policy rationales behind joinder support our affirmance. Joinder promotes judicial efficiency by saving time and expenses, both to the People and to the defendant. (See People v. Soper, supra, 45 Cal.4th at p. 772, quoting People v. Bean (1988) 46 Cal.3d 919, 939-940 [" 'A unitary trial requires a single courtroom, judge, and court attach[és]. Only one group of jurors need serve, and the expenditure of time for jury voir dire and trial is greatly reduced over that required were the cases separately tried. In addition, the public is served by the reduced delay on disposition of criminal charges both in trial and through the appellate process' "].) As noted, Mendoza committed a string of violent crimes, all involving an attempt to feloniously acquire money or property, and the Supreme Court held the crimes were properly joined for trial. That one of Mendoza's crimes was a capital offense gave the court all the more reason to hold joinder was improper. Yet, the Supreme Court held joinder was proper, which supports our conclusion that consolidation was proper here. And ultimately, the cross-admissibility of the attempted burglary and sex crime and proper joinder of the robbery and sex crime make joinder of all three nonprejudicial as to Aaron. (See Balderas, supra, 41 Cal.3d at pp. 171-172.)
4. Inflaming the Jury.
Aaron contends the sex crime was far more inflammatory than the robbery, and thus acquittal of the robbery count would have been more likely if the charges had been tried separately. We find neither the robbery nor the sex crime to have been starkly more inflammatory than the other. Aaron suggests the sex crime was more inflammatory than the robbery, and we agree that the attempted rape of a pregnant woman is a quintessential example of an inflammatory crime, but we do not see how violently robbing an innocent 74-year-old man on a sidewalk in a public park would be significantly less inflammatory.
5. Bootstrapping a weak count by joining it to a strong count.
To the extent Aaron argues the evidence of the robbery is weak compared to the sex crime, likewise, we find the evidence is to the contrary. There were multiple witnesses to the robbery of Argueta and capture of Aaron, including Cruz, Cardona, the liquor store manager, and the police officers who later arrived at the scene to find Aaron restrained with zip ties. Argueta identified Aaron in a photographic lineup and testified that he never saw his $50 again. Had the robbery case been tried alone, the likelihood of conviction was great. The evidence was not so "weak" as to make the robbery an improper candidate for joinder.
6. Joinder with a capital offense.
None of the charges against Aaron, standing alone or when joined, was a capital offense. This fact, then, supports the trial court's exercise of discretion.
F. Denial of Aaron's Motion for Acquittal Was Not Error
1. Section 1118.1.
At the close of the People's case, defense counsel moved for acquittal on the first degree burglary, attempted first degree burglary, and dissuading a witness charges. Section 1118.1 provides in relevant part: "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal." " 'The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." ' [Citation.] . . . The question 'is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.' [Citation.] . . . . The question is one of law, subject to independent review. [Citation.]." (People v. Stevens (2007) 41 Cal.4th 182, 200.)
2. First Degree Burglary (Laundry Room at Ramada Inn).
Section 459 reads in pertinent part, "Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." Section 460 reads in relevant part: "(a) Every burglary of an inhabited dwelling house, vessel, . . . , which is inhabited and designed for habitation, floating home, . . . or trailer coach, . . . or the inhabited portion of any other building, is burglary of the first degree. [¶] (b) All other kinds of burglary are of the second degree." For purposes of determining whether burglary is of the first degree, " 'inhabited' means currently being used for dwelling purposes, whether occupied or not." (§ 459.)
Aaron contends it was wrong for the trial court to conclude the Ramada Inn laundry room was an inhabited dwelling because the room was only accessible to and intended for the hotel staff. He also asserts that under the court's rationale, "literally anything in a hotel could be said to be within an inhabited dwelling." In determining whether the structure is an inhabited dwelling, "[t]he question is not whether the specific area is used for sleeping or everyday living, but whether the area is functionally interconnected to and immediately contiguous to the residence, which is used for sleeping or everyday living." (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1110.) " 'Functionally interconnected' means used in related or complementary ways." (Id. at p. 1107.)
A laundry facility can be an inhabited dwelling. (People v. Woods (1998) 65 Cal.App.4th 345, 349 (Woods).) In Woods, defendant was convicted of first degree burglary for breaking into an apartment complex's laundry room. (Id. at p. 347.) Like Aaron in this case, defendant in Woods argued that a commercial laundry facility was not an inhabited dwelling because it was not an "integral part" of any of the individual dwelling units in the apartment complex. (Id. at p. 349.) The court disagreed, stating the laundry room was a place where the tenants of the building would come and do their household chores and because of this, the court had no problem deeming the room an "integral part of the complex and thus an inhabited dwelling." (Ibid.) In so holding, the court determined the laundry room did not need to be an integral part of any individual apartment unit, so long as it was an integral part of the building in which such living units were housed. (Id. at pp. 348-349.)
The court also employed the "reasonable expectation test" for an inhabited dwelling proffered in People v. Brown (1992) 6 Cal.App.4th 1489, 1496. " 'Since one of the purposes of the burglary statute is to protect against unauthorized entry and the attendant danger that the occupant will react violently to the intrusion, the reasonable expectation test focuses on the protection the inhabitants of a structure reasonably expect. [Citations.] In situations implicating this particular purpose, the proper question is whether the nature of a structure's composition, is such that a reasonable person would expect some protection from unauthorized intrusions.' " (Woods, supra, 65 Cal.App.4th at p. 349, quoting Brown, at p. 1496.) Defendant asserted the tenants did not have an expectation of privacy in the laundry facility because the tenants should expect strangers in such a place. (Woods, at p. 349.) The Woods court quickly rejected this argument stating that defendant "ignores the fact that the 'strangers' a tenant would expect to meet in the laundry room were fellow tenants doing laundry, not burglars. The evidence established the room was usually kept locked so that only tenants were permitted access to it. This evidence is sufficient to support a finding, under the reasonable expectation test, that the laundry room is an area where tenants would expect protection from unauthorized intrusions, and thus it qualifies as an inhabited dwelling." (Ibid.)
Here, while the Ramada Inn is not an apartment complex and the users of the laundry room are employees rather than tenants, we find this to be a distinction without a real difference. First, a hotel is just like an apartment building. It is inhabited by numerous people; the only difference is that hotel "tenants" change more frequently. Historically and traditionally, hotel rooms have been included within the definition of a dwelling house (Perkins, Criminal Law (3d ed. 1982) p. 257; see People v. St. Clair (1869) 38 Cal. 137, 138 [lodger's room in rented house]; People v. Fleetwood (1985) 171 Cal.App.3d 982, 986-988 [occupied hotel room is dwelling house for purposes of first degree robbery and burglary]), and even a hotel lobby has been considered part of an "inhabited dwelling house," making robbery of a hotel desk clerk a first degree robbery under section 212.5. (People v. Wilson (1989) 209 Cal.App.3d 451, 453.)
The Ramada Inn laundry room is a locked facility where the employees go to do the hotel's laundry and cleaning tasks, like the "household chore[s]" in Woods. (Woods, supra, 65 Cal.App.4th at p. 349.) Those chores are done for the benefit of the hotel's guests, just as an apartment resident might hire a housekeeper to do his or her laundry, and thus the laundry room is functionally interconnected with the hotel's inhabited living quarters. Finally, the Ramada Inn laundry room is contiguous to the building—given its location inside the hotel on the first floor—and interconnected with the hotel's operations. Thus, the rationale of Woods supports the judge's denial of the motion for acquittal of the first degree burglary charge relating to Doe.
Aaron's contention also fails the reasonable expectation test. Like the laundry facility in Woods, the Ramada Inn laundry room is kept locked so that only employees may access it. Employees at the Ramada Inn expect the absence of burglars in their laundry room just as much as the tenants in Woods expected such absence in theirs. Doe would expect to run into other coworkers but not a strange man lunging from behind the boiler prepared to sexually assault her. Being trapped in a small locked room with a stranger who entered without permission made Doe more vulnerable, just as a resident victimized in his or her own living quarters is more vulnerable and more likely to react violently upon encountering a stranger than if they were in a public space. (See, e.g., Woods, supra, 65 Cal.App.4th at p. 349; People v. Fleetood, supra, 171 Cal.App.3d at p. 987.) Thus, the policy reasons for making residential burglary a more serious offense than commercial burglary support recognition of the laundry room as part of an inhabited dwelling house for purposes of section 459. Accordingly, we conclude the evidence was sufficient to support a first degree burglary conviction, and the trial judge did not err in sending the charge to the jury.
3. Attempted First Degree Burglary.
Aaron also contends there was insufficient evidence to send to the jury the attempted burglary of Gina Brindley's residence. Section 664 states in pertinent part, "Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: (a) If the crime attempted is punishable by imprisonment in the state prison, . . . the person guilty of the attempt shall be punished by imprisonment in the state prison or in a county jail, respectively, for one-half the term of imprisonment prescribed upon a conviction of the offense attempted." "An attempt to commit a crime requires a specific intent to commit the crime and a direct but ineffectual act done toward its commission. [Citation.] The act must go beyond mere preparation, and it must show that the perpetrator is putting his or her plan into action, but the act need not be the last proximate or ultimate step toward commission of the substantive crime. [Citation.]" (People v. Kipp, supra, 18 Cal.4th at p. 376.)
In the case of burglary, "For an entry to occur, a part of the body or an instrument must penetrate the outer boundary of the building. [Citation.] 'In most instances, of course, the outer boundary of a building for purposes of burglary is self-evident. Thus, in general, the roof, walls, doors, and windows constitute parts of a building's outer boundary, the penetration of which is sufficient for entry.' [Citation.]" (Magness v. Superior Court (2012) 54 Cal.4th 270, 273-274, italics added.) Although the evidence did not show a physical intrusion by Aaron, he was charged with and convicted of attempted burglary. His attempting to turn the door handle on a locked outer door was sufficient to constitute an attempt. Jiggling a window is enough to support an attempted burglary conviction (People v. Goode (2015) 243 Cal.App.4th 484, 487), and jiggling a door handle stands on the same footing.
There is sufficient evidence in this record to support Aaron's conviction. The evidence shows that in the early morning, Aaron banged on the door, rang the doorbell multiple times, and repeatedly attempted to open the locked outer door. The evidence was sufficient to support the inference that had Aaron been able to turn the handle, the burglary would not only have been attempted but completed. Aaron was "putting his . . . plan into action," and thus, the trial court did not err in denying his motion for acquittal on the attempted first degree burglary charge. (Kipp, supra, 18 Cal.4th at p. 376.)
As explained, section 459 has a felonious-intent requirement (i.e., "with intent to commit grand or petit larceny or any felony"). Having concluded evidence of the completed sex crime against Doe would be admissible to prove Aaron's intent in the attempted burglary (pursuant to section 1101, subdivision (b)), the jury could have inferred that Aaron's attempted entry into Brindley's apartment was accompanied by the intent to commit sexual assault, thus satisfying the felonious-intent element of section 459.
4. Dissuading a Witness.
Finally, Aaron contends the court erred in denying his section 1118.1 motion with regard to both counts of dissuading a witness. The first count charged related to Cruz, the Good Samaritan who intervened in the robbery of Argueta; the second count was based on Aaron's throwing Doe's phone across the room and threatening to hit her in the stomach if she contacted the police.
a. Section 136.1.
Section 136.1 "defines a family of 20 related offenses." (People v. Torres (2011) 198 Cal.App.4th 1131, 1137.) Subdivision (b) of section 136.1 provides in relevant part: "Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge. [¶] . . . [¶] (3) Arresting or causing or seeking the arrest of any person in connection with that victimization."
Section 136.1, subdivision (c) designates a violation of either subdivision (a) or (b) as a felony, and provides for a higher range of punishment, when the defendant dissuades or attempts to dissuade the witness by means of force or threat of violence, acts in furtherance of a conspiracy, acts for pecuniary gain, or has been previously convicted of the same offense. (See generally, People v. Torres, supra, 198 Cal.App.4th at p. 1138.)
b. The threats and assault against Cruz
Aaron first contends the evidence of dissuading Cruz was insufficient because Argueta had already received assistance from others, the police had been called, and Aaron was no longer on the scene. None of those factors is dispositive. Aaron suggests, somewhat incredibly, the evidence showed only that he was "merely looking at Cruz" and the prosecution somehow spun that as evidencing an intent "to keep Cruz from contacting police." He further argues that "statements [to] Cruz were directed after Cruz began following appellant, at which point police were already contacted."
Cruz followed Aaron out of the park, for the evident purpose of assisting in his apprehension. Although the police had been called, they were not at the scene of the confrontation between Aaron and Cruz. When Cruz located Aaron and confronted him as to why he had assaulted Argueta, Aaron responded, "What's up," "this is my neighborhood," and then punched Cruz in the face. Cruz chased Aaron in an attempt to detain him, but Cruz fell and hit his head and his elbow before he could apprehend Aaron.
The purpose of Cruz's actions could easily be inferred: to make sure Argueta's assailant would not escape. This was further strengthened by Cruz's act of asking the store manager to keep Argueta nearby, which shows that Cruz wanted to ensure Argueta would be available to identify Aaron as the assailant when the police arrived.
Aaron's later confrontation with Cruz could be construed as an attempt to dissuade him from reporting Aaron to the police. Aaron's verbal references—"what's up" and "this is my neighborhood"—could easily be interpreted as efforts to intimidate Cruz from calling the police, from assisting the police in his identification or capture, or from testifying in the future. (People v. Lee (1994) 28 Cal.App.4th 1724, 1730 ["In some circles, 'What's up?' is considered a challenge to fight"].) And punching Cruz in the mouth was blatantly intended to assist Aaron in his effort to escape apprehension and to deter Cruz from pursuing him.
Aaron argues section 136.1, subdivision (b) targets only "prearrest" efforts to prevent a crime from being reported to the authorities, or to prevent an action from being prosecuted, citing People v. Navarro (2013) 212 Cal.App.4th 1336, 1347. That restriction applies at most to subdivision (b)(1), and contrary to Aaron's assertion, there is no rule that precludes a conviction for dissuading a witness after police have already been contacted. "Subdivision (b)(2) clearly encompasses more than prearrest efforts to dissuade, inasmuch as it includes attempts to dissuade a victim from causing a complaint or information to be prosecuted or assisting in that prosecution." (People v. Velazquez (2011) 201 Cal.App.4th 219, 233.) Here, Aaron attempted to prevent Cruz from assisting in his apprehension and identification as the assailant. Thus, Aaron's actions fell under subdivision (b)(3) of section 136.1, which prohibited him from hindering someone in arresting him or causing his arrest. The evidence was sufficient to sustain the dissuading charge.
c. The threat against Doe
Aaron next contends the evidence was insufficient that he dissuaded Doe, focusing on the act of taking Doe's phone and throwing it across the room. He suggests, even if we were to conclude the evidence was sufficient to support a misdemeanor dissuading conviction, it was insufficient to support a conviction for attempting to dissuade a witness by force or threats, which made it a felony.
Aaron cites People v. Leon (2016) 243 Cal.App.4th 1003, 1027 as an instance where the Court of Appeal reduced a felony dissuading conviction to the lesser included offense of dissuading without force or violence. He argues that his act of taking the victim's cell phone was at most sufficient to prove an attempt to dissuade the victim from reporting without force. (Id. at p. 1027.) The portion of Leon that Aaron cites contains only the disposition of that case. The published portion of the opinion does not discuss the facts of the case, nor does it contain any portion of the relevant analysis pertaining to dissuading a witness (by force or otherwise). Thus, it is not authority for Aaron's proposition.
More importantly, the act of throwing the phone was not the only evidence of dissuading. Aaron also threatened, with a raised fist, to punch Doe in the stomach if she contacted the police, thereby threatening to injure not only her, but her unborn child. "No police. No police," he commanded. "He only said to me not to tell the police because if I did, he was going to hit me on my belly." Doe specifically confirmed she was scared for the safety of her unborn baby. There was ample evidence to support the felony dissuading conviction.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Schulman, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------