Opinion
D056617
08-26-2011
THE PEOPLE, Plaintiff and Respondent, v. ABEL FLORES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD221593)
APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed as modified, and remanded with directions.
A jury convicted Abel Flores of five counts of unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)) and one count of first degree burglary (Pen. Code, § 459/460). The jury found true the allegation that another person, other than an accomplice, was present in the residence during the burglary's commission. (§ 667.5, subd. (c)(21).) The court dismissed two counts under section 1118.1.
All statutory references are to the Penal Code unless otherwise stated.
The court found true an allegation that Flores committed the burglary while he was on felony probation. It sentenced Flores to eight years, eight months in state prison. Flores pleaded guilty to two other counts of unlawful taking of a vehicle in exchange for concurrent 16-month sentences on those counts and dismissal of another such count.
Flores contends insufficient evidence supported the section 667.5 subdivision (c)(21) enhancement because no evidence showed anyone was at home in the building during the burglary. He further contends the trial court improperly discharged a juror. We affirm the judgment as modified and remand with directions.
FACTUAL BACKGROUND
We set forth only facts related to the enhancement challenged on appeal.
Michael Nelson parked his motorcycle in the underground garage of a building in his apartment complex and went to his apartment located in a different building of the same complex. No other motorcycle was parked nearby. The following day, Nelson discovered his motorcycle was gone. The prosecutor asked whether the building where the motorcycle was parked had been evacuated that day, and Nelson responded in the negative. Approximately one month later, police recovered the motorcycle. Flores was eventually arrested and charged with the crime.
In closing argument, the prosecutor argued to the jury, "Let's take a look at the . . . video. . . . this occurs at an attached garaged in a large residential building at 11:00 p.m. You can bet there's someone sleeping in that building during the time of this burglary."
DISCUSSION
I.
" '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.' [Citation.] We must ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citations.]' [Citations.] A reasonable inference ' " ' " 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work'. . . ." [¶] "A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence." ' " ' " ' [Citation.] '[W]here the proven facts give equal support to two inconsistent inferences, neither is established.' " (People v. Tran (1996) 47 Cal.App.4th 759, 771-772.)
Section 667.5 subdivision (c)(21) applies to "[a]ny burglary of the first degree [under] section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." "A defendant convicted of a violent felony is limited as to the amount of presentence and postsentence custody credits that can be earned." (People v. Singleton (2007) 155 Cal.App.4th 1332, 1337 (Singleton).)
In Singleton, an apartment owner was not present inside his apartment when it was burglarized; rather, he was outside in a hallway, monitoring whether the defendant, a former occupant of the apartment, would emerge with stolen property. (Singleton, supra, 155 Cal.App.4th at p. 1337.) The Singleton court concluded, "Section 667.5, subdivision (c)(21) is plain on its face, and it requires a person, other than an accomplice, be 'present in the residence during the commission of the burglary.' (Italics added.) The plain meaning of 'present in the residence' is that a person, other than the burglar or an accomplice, has crossed the threshold or otherwise passed within the outer walls of the house, apartment, or other dwelling place being burglarized. 'The threshold line of the building is located at the doorways into the apartments. One who stands on the stairway would not be considered "inside" the building under ordinary parlance.' [Citation.] Certainly, it would not comport with the ordinary and plain usage to consider someone standing outside, around the corner, and down the hall from an apartment to be present in that apartment." (Singleton, at pp. 1337-1338.)
We agree with the holding in Singleton and apply it to this case. Reviewing the evidence in the light most favorable to the judgment, we conclude there was insufficient evidence to prove someone other than the accomplice was in the apartment building when it was burglarized. The only evidence the People adduced to support the allegation was that the building was a large multi-residence apartment and because the crime occurred at almost 11:00 p.m., it was likely someone was at home in one of the units. But that is speculation, and not evidence — either direct or circumstantial —sufficient to support the enhancement allegation. We acknowlege the victim testified there was no evacuation of the building that day. But even if that is true, it is not evidence from which a rational juror can make a true finding beyond a reasonable doubt that anyone was present in any one of the apartments at the time of the burglary. Mere speculation does not suffice. Accordingly, we reverse the section 667.5, subdivision (c)(21) enhancement. On remand, the trial court is directed to recalculate Flores's custody credits.
II.
Flores concedes that Juror No. 6 admitted his inability to follow the law regarding circumstantial evidence, but he argues the trial court improperly dismissed that juror for taking a minority position as to how the law applied to the evidence. Specifically, he contends, "The court's lengthy questions and holding Juror [No. 6] to monosyllabic answers was an inherently improper method of inquiry. [The court] did as [it] said elicit a confession of sorts that Juror [No. 6] could not follow circumstantial evidence law, but it was not a 'resounding no' as [the court] characterized it upon firing him from the jury. Rather[, Juror No. 6] was responding to multi-layer haranguing questions as a non-lawyer might to cross-examination by a skilled adversary. The inquiry failed to provide substantial evidence that as a demonstrable reality, Juror [No. 6] would not weigh circumstantial evidence as promised in his juror oath."
Background
On the morning of the third day of deliberations, the jury sent the court a note stating, "Juror [No. 6] has stated multiple times that he cannot convict without direct evidence and will not give weight to circumstantial evidence. Many of us feel that he should have stated this during the jury selection process. [¶] Since he did not state this during the process, is this a situation where we would bring in an alternate juror or would we need to consider being a hung jury? [¶] Juror [No. 6] would like to discuss this matter with you."
After conferring with counsel, the court concluded that under California Supreme Court precedent, including People v. Prieto (2003) 30 Cal.4th 226, 274 (Prieto), it had a duty to inquire regarding possible jury misconduct. In its interview with Juror No. 6, the court took care to avoid encroaching on the jury's deliberative process. At one point, the court asked Juror No. 6 whether he required direct evidence to prove an element of a charge filed against the defendant. Juror No. 6 stated, "In a way, your honor." The court asked for clarification and Juror No. 6 replied, "Okay. I found circumstantial evidence, it was vague to me, to my analytical point of view. And I find it so hard to convict someone just based on the data provided." The court interrupted Juror No. 6 and again asked him whether the jury note was correct.
The court read CALCRIM No. 223 to Juror No. 6 and pressed him about whether he could comply with it or if, as the jury note indicated, he could not. Juror No. 6 replied that the note correctly represented his view. When asked if he believed he could follow California law regarding circumstantial evidence, he stated, "No, your Honor. Sorry." Following further discussion with the parties, in which defense counsel disagreed with the court's inquiry of the juror, the court made a finding that Juror No. 6 required some form of direct evidence. The court next re-interviewed Juror No. 6, who confirmed the court had correctly understood his views in the previous exchange. Accordingly, the court discharged him.
" 'When a trial court is aware of possible juror misconduct, the court "must 'make whatever inquiry is reasonably necessary' " to resolve the matter.' [Citation.] Although courts should promptly investigate allegations of juror misconduct 'to nip the problem in the bud' [citation], they have considerable discretion in determining how to conduct the investigation. 'The court's discretion in deciding whether to discharge a juror encompasses the discretion to decide what specific procedures to employ including whether to conduct a hearing or detailed inquiry.' " (Prieto, supra, 30 Cal.4th at p. 274.)
Here, the court acted in its discretion to ask Juror No. 6 carefully tailored questions to avoid discussing the jury's deliberations, and repeatedly warned Juror No. 6 to refrain from disclosing such information. Despite the court's best efforts, Juror No. 6 disclosed that in thinking about the evidence he found "vague" circumstantial evidence. However, the court did not pursue this topic further, and instead inquired regarding the juror's ability to follow the law. As even Flores concedes, Juror No. 6 replied he could not follow the law. Therefore, the court did not err in dismissing him on that ground. Contrary to Flores's contention, the court did not dismiss Juror No. 6 because of his views regarding the evidence.
DISPOSITION
The finding that the burglary in count 8 was a violent felony under Penal Code section 667.5, subdivision (c)(21) is reversed and the judgment is modified to strike that enhancement. In all other respects, the judgment is affirmed. The matter is remanded and the trial court is directed to recalculate Abel Flores's custody credits to reflect the modification of the judgment, amend the abstract of judgment accordingly, and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
O'ROURKE, J. WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.