Opinion
C056250.
7-13-2009
THE PEOPLE, Plaintiff and Respondent, v. JEROME ONTARIO DOSTY, Defendant and Appellant.
Not to be Published
Defendant Jerome Ontario Dosty was found guilty by a jury of vehicle theft (Veh. Code, §§ 10851, subd. (a)), receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)), felon in possession of a firearm (§ 12021, subd. (a)(1)), carrying a concealed weapon and ammunition (§ 12025, subd. (b)(6)), resisting arrest (§ 148, subd. (a)(1)), receiving stolen property (§ 496, subd. (a)), and first degree burglary. (§ 459.) The jury was unable to reach verdicts on three other counts alleging first degree robbery (§ 211), first degree burglary (§ 459), and false imprisonment of an elder. (§ 368, subd. (f).) A second jury found defendant guilty of these charges but found not true an enhancement for committing specified crimes against a person age 65 or older. (§ 667.9, subd. (a).) Probation was denied and defendant was sentenced to a term of eigHt years eight months in state prison.
All statutory references are to the Penal Code unless otherwise specified.
Although the courts minutes reflect that defendant also was convicted of carrying a loaded firearm (§ 12031, subd. (a)(2)(f)), this charge was previously dismissed.
Defendant appeals, raising numerous claims. We affirm.
FACTUAL BACKGROUND
Other than the circumstances pertaining to one of the two burglary charges, a detailed recitation of the facts is not necessary to resolve the issues raised by defendant. Thus, we briefly describe the events underlying the charges and provide more factual information as needed when addressing defendants arguments.
Most of the charges stem from an incident that occurred in April 2005, in which two assailants gained entrance to the 70-year-old victims home by ringing her doorbell at 10:15 at night. On entering, the men hit the victim and forced her to the floor. While one of the men held the victim down, the other man ransacked the house. The assailants stole the victims truck and several other items. One week later, defendant was observed by a sheriffs deputy driving the victims truck at a high speed, after which he was apprehended while attempting to flee on foot. During the foot pursuit, the defendant appeared to grab something from his waistband, and a loaded, semiautomatic handgun was later discovered in the path where the pursuit had occurred. Items taken from the victims home during the burglary were located in the truck, and other items were removed from defendants bedroom in his sisters apartment. When the victim was brought to the scene, she observed that defendant met the description of one of the two intruders in terms of his body type and hair, although she had not seen his face at the time of the offense.
In a separate incident in March 2005, numerous items were removed from a house owned by a different victim. A rear window of the house had been broken and was the suspected point of entry into the residence. Latent fingerprints from the window were determined to belong to defendant, whom the victim did not know and had not given permission to enter the residence.
DISCUSSION
I
Defendant contends there was insufficient evidence that the March 2005 burglary involved an inhabited dwelling for purposes of establishing that the offense was a first degree burglary. He is incorrect.
Burglary of "an inhabited dwelling house" is first degree burglary. (§ 460, subd. (a).) Previous case law held that a place was an inhabited dwelling "if a person with possessory rights uses the place as sleeping quarters intending to continue doing so in the future." (People v. Fleetwood (1985) 171 Cal.App.3d 982, 987.) Under more recent cases, a place may be considered an inhabited dwelling even if it is not being used as sleeping quarters, such as when the possessor is in the process of moving in or out and has possessions in the residence. (People v. Hughes (2002) 27 Cal.4th 287, 354-355; People v. Hernandez (1992) 9 Cal.App.4th 438, 442.) According to these cases, the issue "`"`turns not on the immediate presence or absence of some person but rather on the character of the use of the building."" (People v. Hughes, supra, 27 Cal.4th at p. 355.) "`"[T]he proper question is whether the nature of a structures composition is such that a reasonable person would expect some protection from unauthorized intrusion." [Citation.] [Citation.]" (Ibid.)
Thus, in addition to the use of a place as sleeping quarters, reviewing courts have considered whether the victim intended to occupy the home in the future, whether the victims possessions were present and whether the utilities had been turned on in determining whether a dwelling is inhabited. (See, People v. Hughes, supra, 27 Cal.4th at p. 355; People v. Hernandez, supra, 9 Cal.App.4th at p. 442.) For example, in People v. Hughes, our Supreme Court concluded that an apartment was an inhabited dwelling when the victim was in the process of moving out but her furniture remained at the residence, the utilities were still on and the victim was occasionally present during the day. (People v. Hughes, supra, at p. 355.)
Turning to the present matter, there was ample evidence to support defendants conviction for first degree burglary. The victim had owned the residence for just over a month when the burglary occurred, had slept there approximately five times and had showered there "maybe twice." He had moved several of his possessions into the residence, including his stereo equipment, television, VCR and DVD players, various pieces of furniture, personal hygiene items and tools. The television and VCR were connected, and the victim had used the television, suggesting that at least some of the utilities had been turned on. The victim continued to live at his parents home but intended to complete repairs to the new residence and then move in permanently. However, on the occasions when he slept at the residence prior to the burglary, he "just came to sleep there" and had not been conducting repairs. All of these circumstances supported the conclusion that the residence was an inhabited dwelling.
Defendant places significance on the fact that the victim continued to sleep at his parents home and had many of his possessions there to support the claim that the burglarized residence was not being used for dwelling purposes. But even a vacation home, where people sleep infrequently and keep only a small amount of possessions, is considered an inhabited dwelling based on the reasonable expectation of protection from unauthorized intrusion in such place. (People v. DeRouen (1995) 38 Cal.App.4th 86, 92, disapproved on other grounds in People v. Allen (1999) 21 Cal.4th 846, 866, fn. 21.) In other words, the interests in protecting against "the potential danger of an unexpected intruder" and in safeguarding against intrusions into "the `most secret zone of privacy" are imperiled even if the victim stays only sporadically at a residence and does not have all his or her possessions there. (People v. DeRouen, supra, at p. 92.) We necessarily reject defendants argument to the contrary.
II
Defendant maintains that one of the instructions given to the jury on aiding and abetting liability improperly relieved the prosecution of its burden of proof to establish that the perpetrator committed the crime charged. Again, we disagree.
We begin by addressing the Peoples claim that defendant forfeited this argument by failing to object to the instruction in the trial court. As acknowledged by the People, an appellate court "may . . . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (§ 1259.) If, as defendant claims, the instruction given by the trial court relieved the prosecution of its burden of proof on an element of the offense, defendants substantial rights may have been affected. Accordingly, we turn to the merits.
Defendants claim pertains to CALCRIM No. 400, which was reworded slightly and read to the jury at defendants second trial as follows: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. Two, he or she may have aided and abetted someone else, who committed the crime. In these instructions, I will call that other person `the perpetrator. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it."
CALCRIM No. 400, as actually worded, states: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it."
Defendant claims that by defining "perpetrator" as the person "who committed the crime," this instruction erroneously "implies the offense was actually committed by that person," instead of leaving this determination to the jury to decide.
"`In deciding whether an instruction is erroneous, we ascertain at the threshold what the relevant law provides. We next determine what meaning the charge conveys in this regard. Here the question is, how would a reasonable juror understand the instruction." (People v. Woodward (2004) 116 Cal.App.4th 821, 834.) "When considering a challenge to a jury instruction, we do not view the instruction in artificial isolation but rather in the context of the overall charge. [Citation.] For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction." (People v. Mayfield (1997) 14 Cal.4th 668, 777.) We consider the entire record, including the arguments of counsel, in making this determination. (See People v. Kelly (1992) 1 Cal.4th 495, 526.)
Applying these principles, we conclude there was no error. The instruction given by the trial court was a correct statement of the law: a person may be found guilty of a crime if he personally committed it or if he aided and abetted its commission by someone else. Even if we were to accept the unlikely proposition offered by defendant that a jury could have misunderstood the instruction in question as directing them to assume the perpetrator committed the offense when considering defendants role as an aider and abettor, the next instruction given to the jury would have immediately disabused them of this notion. That instruction stated: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that . . . [t]he perpetrator committed the crime . . . ." In addition, the defense argument to the jury focused solely on the identification evidence presented against defendant at trial, with no discussion of whether defendant was an aider and abettor of the offense. Considering the record as a whole, we conclude there is no possibility the jury misunderstood the instructions in the manner argued by defendant.
Defendant also argues the instruction constituted a directed verdict because the jury may have concluded he was the perpetrator, and the instruction "states the `perpetrator committed the crime." As already discussed, no reasonable jury would have given the language in the instruction the meaning urged by defendant. In addition, the instruction as given to the jury clearly referred to the "perpetrator" as a third person — i.e., someone other than defendant.
Finally, defendant claims it was erroneous to instruct the jury that he was "equally guilty" whether he personally committed the offense or aided and abetted someone else who committed it. Defendant relies on cases involving murder convictions under a "natural and probable consequences" theory, in which it was recognized that the aider and abettors intent could give rise to a different degree of criminal liability than the perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1120-1122; People v. Woods (1992) 8 Cal.App.4th 1570, 1586-1587.) However, as noted by the California Supreme Court, "outside of the natural and probable consequences doctrine, an aider and abettors mental state must be at least that required of the direct perpetrator." (People v. McCoy, supra, at p. 1118.) Accordingly, the cases cited by defendant are not relevant to the issue before us.
III
Next, defendant finds fault with CALCRIM No. 300, which instructs the jury that "[n]either side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant." Defendant contends that, "[b]y instructing the jury that the defense need not produce `all relevant evidence, the jury might be left with the belief the defense is required to produce `some evidence." An identical argument was rejected by this court in People v. Anderson (2007) 152 Cal.App.4th 919, 938, and we reject it again here.
In People v. Anderson, the jury was instructed on the presumption of innocence and the prosecutions burden of proof, as well as the defendants right not to testify and to rely on the state of the evidence and the prosecutions failure to prove the charges beyond a reasonable doubt. Viewing these instructions as a whole, we concluded there was no reasonable likelihood the jury would have misunderstood the instruction in the manner claimed by the defendant. (People v. Anderson, supra, 152 Cal.App.4th at p. 938.)
Identical instructions were given to the jury in defendants trial. Thus, we disagree with defendant that there is any reasonable possibility the jury could have concluded he carried a burden to produce evidence.
IV
Defendant argues the upper term sentence imposed on his conviction for robbery violated the holding in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. 270 . We disagree.
In Blakely, supra, 542 U.S. at p. 301, the United States Supreme Court held that any circumstance "`other than the fact of a prior conviction" that is relied on by a trial court to increase the penalty for a crime beyond the statutory maximum must be tried before a jury and proved beyond a reasonable doubt. The California Supreme Court held that the exception to the jury trial requirement for prior convictions "include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (People v. Black (2007) 41 Cal.4th 799, 819.)
Thus, "the right to a jury trial does not apply to the determination of the aggravating circumstance that `[t]he defendants prior convictions . . . are numerous or of increasing seriousness" (People v. Towne (2008) 44 Cal.4th 63, 75, citing People v. Black, supra, 41 Cal.4th at pp. 818-820), or to whether "a defendant was on probation or parole at the time of the offense." (People v. Towne, supra, at p. 79.) Likewise, "[w]hen a defendants prior unsatisfactory performance on probation or parole is established by his or her record of prior convictions," a jury trial on the issue is not required to establish this as a factor in aggravation. (People v. Towne, supra, at p. 82.)
"[I]mposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions." (People v. Black, supra, 41 Cal.4th at p. 816.) This is so because "[u]nder Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make [a] defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not `legally entitled to the middle term sentence, and the upper term sentence is the `statutory maximum." (People v. Black, supra, at p. 813, fn. omitted.)
In the present matter, the trial court cited several factors in aggravation in support of its imposition of the upper term, including defendants numerous prior convictions of increasing seriousness, the fact that he was on probation at the time of the offense, and his prior unsatisfactory performance on probation. A review of defendants criminal record as disclosed in the probation report supports these factors.
Defendant does not contend the evidence was insufficient to support any of these factors but urges that People v. Black was incorrectly decided. He acknowledges we are bound by the California Supreme Courts holding (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and on this point we agree. Accordingly, we reject defendants claim.
V
Defendants final argument is that he is entitled to an additional day of custody credit for the day of his arrest. This argument fails as well.
Defendant was arrested on the evening of April 10, 2005, but he was not booked into jail until the next day. He received custody credit from the date he was placed in jail, but contends he is entitled to credit for the day he was arrested.
A defendant is considered "in custody" and entitled to custody credits for "any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution." (§ 2900.5, subd. (a).) In People v. Ravaux (2006) 142 Cal.App.4th 914, the court noted that "[a]rrest or detention by police prior to booking is not mentioned anywhere in section 2900.5," and held: "It is clear from the plain language of the statute that custody credits are to be given for time spent within a residential detention facility, not for merely being in the custody of police." (Id. at pp. 919-920.)
Defendant cites numerous cases to support his claim that all presentence time in custody, including pre-booking time, is to be included in the computation of custody credits. However, none of the cases cited by defendant addresses a scenario in which the date of arrest and the date of booking are differentiated. (See, e.g., People v. Terrell (1999) 69 Cal.App.4th 1246, 1254-1255; People v. Guillen (1994) 25 Cal.App.4th 756, 764; People v. Heard (1993) 18 Cal.App.4th 1025, 1027; People v. Magana (1991) 230 Cal.App.3d 1117, 1121; People v. Smith (1989) 211 Cal.App.3d 523, 526-527; In re Ewing (1978) 78 Cal.App.3d 455, 458.)
Defendant points to language in section 2900.5 stating that, for purposes of the statute, time in custody "include[s], but [is] not limited to" the various custodial alternatives listed. (§ 2900.5, subd. (a).) However, the statutes reference to "similar residential institution[s]" following the list of custodial settings for which custody credit is due precludes credit for time in police custody prior to placement in such setting. (§ 2900.5, subd. (a).)
Defendant also notes that section 2900.5 refers to section 4019, which, he maintains, "awards custody credit from the date of arrest." Section 4019, which addresses work and conduct credits, applies "[w]hen a prisoner is confined in or committed to a county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp, including all days of custody from the date of arrest to the date on which the serving of the sentence commences." (§ 4019, subd. (a)(1).) Subdivisions (b) and (c) of the statute specify that conduct credit is to be awarded based on "each six-day period in which a prisoner is confined in or committed to a facility as specified in this section," i.e., a jail, industrial farm or road camp. As section 4019 is "designed to ensure the smooth running of a custodial facility by encouraging prisoners to do required work and to obey the rules and regulations of the facility" (People v. Silva (2003) 114 Cal.App.4th 122, 128), it is only logical that a defendant is not entitled to work or conduct credit prior to placement in such a facility.
Defendant was given credit for the time he was "in custody" as that term is defined by statute. (§ 2900.5, subd. (a).) He was not entitled to custody credit for the period of detention following his arrest but prior to being booked into jail.
DISPOSITION
The judgment is affirmed.
We concur:
BLEASE, Acting P. J.
SIMS, J.