Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 08WF0616, Thomas Goethals, Judge.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P.J., Aronson, J., and Ikola, J.
Defendant Caleb Tuan MacIntosh challenges his conviction for burglary and possession of burglary tools based on insufficient evidence. He further contends the court committed prejudicial error when it instructed the jury with Judicial Council of California Criminal Jury Instructions CALCRIM 358. Lastly, he contends, and the Attorney General concedes, that the court erroneously sentenced him by suspending the imposition of his sentence for possession of burglary tools. We agree the sentence was erroneous and remand for resentencing. In all other respects, the judgment is affirmed.
All statutory references are to the Penal Code, unless otherwise noted.
I
Proceedings
Defendant Caleb Tuan MacIntosh was convicted by a jury of first degree burglary (count 1), and misdemeanor possession of burglary tools (count 2). The court further found true two prior prison term convictions. He was sentenced to a total term of six years, which included the middle term of four years for count 1, and two one year consecutive terms for the prior prison prior terms. As to count 2, the court suspended imposition of sentence.
Defendant was tried with co-defendant Johnson Nguyen, who is not a party to this appeal. Nguyen was found not guilty of burglary, but was found guilty of possession of burglary tools.
Facts
On March 26, 2008, Myhanh Luong lived with her husband and son in a gated housing community in Westminster, California. To enter the development, a person was required to punch in an access code to open the gate. Luong’s house was secluded than other houses in the development because it was set back from the street.
Luong left her home around 9:00 a.m. She was the last person to leave the residence. She remembered the front door being locked and closed when she left, but she also recalled that she might have closed, but not locked, the back sliding glass door.
When Luong returned home at about 1:30 p.m., she noticed an unfamiliar late model silver Mercedes Benz parked in the middle of her street about, four or five feet from her house. Luong immediately became concerned because none of her neighbors parked in that manner or drove a similar type car. Also, she did not recognize the driver, who was sitting behind the wheel.
Luong drove past the Mercedes and parked in her driveway. As she unloaded items from her car, she saw Defendant walk out from her front door area and onto her driveway. When Luong looked at him, he immediately asked her, “Is Tommy here?” Luong replied, “There’s no Tommy here.” She became concerned because she knew all of her 25-year-old son’s friends, and he did not have a friend named “Tommy.” Also, no one who lived in her community was named “Tommy.”
Defendant began to walk away at a fast pace, while Luong wrote down the license plate number of the Mercedes. When transcribing the number, she was off by one letter. Luong wrote down “5ATZ720.” The correct license plate number was “5ATG720.” As she was writing down the license plate number, the Mercedes took off at a “very, very fast speed” and defendant ran after it. The Mercedes stopped at the security gate and waited for it to open. While the car was waiting for the gate, Defendant jumped in, and the car sped off.
Luong discovered that her front door, which had been locked and closed when she left, was now unlocked and open. The rear sliding glass door, which had been closed when she left, was also now partially open. She also discovered that several pieces of jewelry were missing from her jewelry box, including three rings, a gold necklace, and a decorative gold fingernail. The garage door opener that had been left on her kitchen table was also missing. She believed these items could have easily been concealed inside of someone’s pants pockets.
Luong called the police and reported the burglary. Officer Van Woodson arrived at her residence, and she gave him the license plate number she had written down. Woodsen ran the number Luong had written down. Because the number was incorrect, it turned up another vehicle.
On April 1, 2008, Woodson was on a mid-morning routine patrol when he noticed a late model silver Mercedes Benz with a similar license plate number parked on a residential street. Woodson saw Defendant walking towards the car. He also saw co-defendant Nguyen sitting in the driver’s seat. After defendant got into the front passenger seat, Woodson arrested them.
A search of the Mercedes revealed the presence of a crowbar lying across the back seat. A flathead screwdriver and a mini-LED flashlight were found in the driver’s door pocket, and another flathead screw driver and a pair of black knit gloves were found on the passenger seat floorboard. In a glove box beneath the driver’s seat, were also found a pair of black knit gloves similar to the pair found on the passenger side. Woodson opined that crowbars, screwdrivers, flashlights, and knit gloves are known to be used in burglaries. Woodson also agreed however, that these very same items could be found at a hardware store. Additionally, none of the items taken from Luong’s home were recovered.
II
Discussion
A. Sufficient Evidence Established Defendant’s Burglary Conviction
After the prosecution rested its case, the defense made a motion to dismiss the burglary count pursuant to section 1118.1. The motion was denied.
Defendant claims there was insufficient evidence to support his conviction for burglary. He claims the evidence failed to “[tie him] to the burglary,” or to establish that he entered Luong’s house with the intent to commit a felony. We disagree.
When reviewing a conviction for the sufficiency of the evidence we, “‘“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.”[Citations.]”’ (People v. Hill (1998) 17 Cal.4th 800, 848-849.) Moreover, “‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’[Citation.]’ ‘“Circumstantial evidence may be sufficient to connect a defendant with the crime and prove his guilty beyond a reasonable doubt.”’ [Citations.]” (People v. Stanley (1995) 10 Cal.4th 764, 793.)
In order to be found guilty of residential burglary, the evidence must establish that the defendant entered an inhabited dwelling with the intent to commit larceny or any felony. (§§ 459, 460, subd. (a).) Courts have frequently recognized that in cases involving burglary, the requisite intent is usually established through circumstantial evidence. (People v. Lewis (2001) 25 Cal.4th 610, 643.)
Defendant attempts to undermine the jury’s finding of guilt by contending that only his presence in front of Luong’s house, “sometime after the burglary” tied him to the offense. In support of his claim he points to the fact that Nguyen, his co-defendant, was acquitted of the burglary charge. He also argues that he did not flee from the scene or immediately run away. In his version, he walked down Luong’s driveway after she confronted him and began to run only after the driver in the Mercedes took off. These claims are unpersuasive.
A defendant not actually seen breaking and entering into a residence may still be found guilty of residential burglary based on circumstantial evidence. For example, in People v. Hinson (1969) 269 Cal.App.2d 573, 576, the court found there was substantial evidence that the defendant committed a burglary where a witness identified him as the man she had seen crouching in front of a broken store window, and who then fled from the scene after he noticed her.
In the instant case we also conclude the facts and circumstances reasonably support the inference that defendant burglarized the Luong residence, even though no one actually saw him do so. Luong arrived home unexpectedly in the middle of the day to find a suspicious vehicle parked in the middle of her street, just a few feet from her home. Almost simultaneously, she observed defendant walk away from her front door. When defendant saw her, he immediately asked, “Is Tommy here?” He then began to walk away at a brisk pace which eventually turned into a run when he saw Luong writing down the license plate number.
Almost immediately thereafter, Luong discovered her previously locked front door was unlocked and open, her back sliding door was open, and that several pieces of easily concealable jewelry, as well as her garage door opener were missing. Moreover, six days later, defendant was found in the same car that was parked in front of the Luong residence when it was burglarized, along with a man who resembled the getaway driver. Most telling however was the discovery of commonly classified residential burglary tools strewn throughout the interior of the Mercedes.
Defendant’s claim thus fails.
B. Sufficient Evidence Established Defendant’s Possession of Burglary Tools
Defendant contends there was insufficient evidence to support the jury’s finding that he possessed burglary tools. This contention fails as well.
The standard of review as addressed ante is well settled. “On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]... ‘The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.]’” (People v. Snow (2003) 30 Cal.4th 43, 66.)
Section 466 states, in pertinent part: “Every person having upon him or her in his or her possession a... crowbar, screwdriver... or other instrument or tool with intent feloniously to break or enter into any building... is guilty of a misdemeanor.”
To obtain a conviction for this crime, the prosecution is required to prove the following three elements beyond a reasonable doubt: (1) possession by the defendant; (2) of tools within the purview of the statute; (3) with the intent to use the tools for the felonious purposes of breaking or entering. (People v. Southard (2007) 152 Cal.App.4th 1079, 1085.) The offense however, does not require that the prosecution establish the defendant had the intent to use the burglary tools to break into a particular structure or vehicle. Instead, it is a general intent crime which requires that the tools be obtained for the purpose of breaking and entering. (Id. at pp. 1087-1088.)
Defendant claims the evidence fails to support the finding that he was aware of the presence of the tools or establish that he had dominion and control over them. These contentions fail to persuade us.
California law assumes constructive possession by multiple defendants when they are engaged in a “joint criminal enterprise.” (People v. Land (1994) 30 Cal.App.4th 220, 228. Here, the jury was instructed as part of the modified instruction regarding possession of burglary tools: “Two or more people may possess something at the same time. A person does not have to actually hold or touch something, to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.”
Additionally, defendant claims that his conviction under section 466 is “unlawful” because certain items, such as the black knit gloves and the flashlight are not specifically designated within the statute. This claim also fails.
In People v. Southard, supra, 152 Cal.App.4th at p. 1090, the defendant was found in possession of numerous items specifically designated as burglary tools as well as other items which were not so designated, such as two black sweatshirts, a ski mask, one pair of binoculars, several walkie-talkie radios, a flashlight, and a strap-on head light. In concluding there was sufficient evidence to establish possession of burglary tools, the court declined to limit its consideration to only those items specifically designated within the statute as burglary tools. Rather, it considered all the items found when reaching its conclusion.
We do the same here, and thus conclude the evidence supports a reasonable inference that the items or tools found in the Mercedes were possessed for the purpose of burglary. The tools were found in the same Mercedes that was used in the Luong burglary, some of the items were classified as burglary tools, and the items were lying about and readily accessible, rather than being stored in a tool box.
We thus conclude there was substantial evidence to support the jury’s finding defendant possessed burglary tools.
C. The Jury was Properly Instructed on CALCRIM 358
Defendant contends the court erroneously instructed the jury with CALCRIM No. 358 because his statement “Is Tommy here?” was exculpatory rather than inculpatory. Defendant further claims that because this statement was “central to his defense” it violated his right to due process of law under the Fourteenth Amendment to the United States Constitution. We do not agree.
The jury was instructed with the following modified version of CALCRIM No. 358: “You have heard evidence that defendant Caleb MacIntosh made an oral statement before the trial. You must decide whether or not the defendant made any such statement in whole or in part. If you decided that the defendant made such a statement, consider the statement, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give such a statement. You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.” The jury was further instructed with a modified version of CALCRIM No. 359: “Defendant Caleb Macintosh may not be convicted of any crime based on his out–of–court statements alone. You may rely on the defendant’s out – of- court statements to convict him if you conclude that other evidence shows that the charged crime was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person who committed the crime may be proved by the defendant’s statement alone. [¶] You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.”
After the presentation of evidence, and during its discussion of jury instructions, the court advised counsel that in “an abundance of caution” it was considering instructing the jury with CALCRIM No. 358. The court stated: “[I]t occurs to me that a juror could... think of [the statement] as sort of a consciousness of guilt statement. That is, that Mr. MacIntosh at the scene makes up some cockamamie question to ask because he’s caught at the end of the burglary and, therefore, he’s got to make up some phony person, which is what the victim said he did....”
Trial counsel objected to the instruction. She stated, “I think the way it’s phrased is if someone had made an admission or a copout, as it normally is. By putting it [the instruction] in here, you make it look like it seems that the statement my client made is an admission.”
The court gave the instruction. It found the instruction was warranted by the evidence, it had a sua sponte duty to so instruct, and the instruction was “designed to protect the defendant’s interests.” Moreover, the court further noted the statement “add[ed] in an unusual way to the corpus.”
Lastly, the court rightly pointed out that it believed the People would argue to the jury that defendant made up the statement and that the statement reflected a consciousness of guilt. The court was prescient. In closing argument, the People argued that the statement “Is Tommy here?” was a “complete excuse and a fabrication.”
We conclude that the court correctly instructed the jury with a modified version of CALCRIM No. 358. CALCRIM No. 358, as well as its predecessor, CALJIC No. 2.71, is required to be given sua sponte in every case where an admission is used to prove the prosecution’s case. (People v. Carpenter (1997) 15 Cal.4th 312, 392-393, superseded on other grounds by statute as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) The purpose of this instruction is to assist the jury in determining if the statement was in fact made. (People v. Beagle (1972) 6 Cal.3d 441, 456.)
Moreover, the use notes for CALCRIM 358 provide: “If the jury heard both inculpatory and exculpatory, or only inculpatory, statements attributed to the defendant, give the [cautionary] paragraph. If the jury heard only exculpatory statements by the defendant, do not give the [cautionary] paragraph.” The court here did what it was supposed to do.
The statement made by Defendant “Is Tommy here?” could be viewed as being both inculpatory and exculpatory. But in our view, the statement is more reasonably viewed as being inculpatory; thus defendant was benefitted by the jury being so instructed. In any event, any error in giving the instruction was harmless because it is not reasonably probable that defendant would have achieved a more favorable result if CALCRIM 358 had not been given. (People v. Dickey (2005) 35 Cal.4th 884, 905-906.)
D. Remand for Sentencing is Required Because the Court Improperly Suspended Sentence as to Count 2
Defendant contends, the Attorney General concedes, and we agree, that the court erred when it suspended the sentence as to count 2.
When the court pronounced sentence, it inexplicably suspended imposition of any sentence related to Defendant’s misdemeanor conviction for possessing burglary tools. The suspension was in error because defendant was not granted probation but was sentenced to six years in state prison.
“In granting probation, a trial court may either suspend the imposition of sentence or impose sentence and suspend its execution. (People v. Medina (2001) 89 Cal.App.4th 318, 321.) A sentence that has had its execution suspended must be imposed upon revocation and termination of probation. When imposition of sentence is suspended, the court upon revocation of probation has full discretion to choose from the sentencing options originally available. In contrast, when the court orders suspension of the execution of a sentence the court sentences defendant to a prison term, but only applies that sentence when probation is revoked. In other words, the court does not have the discretion to increase or decrease the sentence. (People v. Howard (1997) 16 Cal.4th 1081, 1095; §1203.1 (a).) Thus, a “do-over” is in order.
Defendant further argues, however, that if the matter is remanded the court must stay count 2 pursuant to section 654. He claims if the burglary tools were possessed, they were possessed for the sole objective of committing a burglary. We disagree.
Section 654 precludes multiple punishments for a single act or indivisible course of conduct. (People v. Hester, (2000) 22 Cal.4th at 290, 294.) In reviewing a trial court’s sentencing decision, we give deference to the trial court’s factual findings. “‘The question of whether the acts of which defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendant’s intent and objective in committing the acts. This determination will not be reversed on appeal unless unsupported by the evidence presented at trial.’ [Citation.]” (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.)
To determine whether a course of conduct is indivisible, courts consider the intent and objective of the defendant. If all of the criminal acts were incident to a single criminal objective, than the court may impose punishment only as to one of the offenses committed. (People v. Beamon (1973) 8 Cal.3d 625, 636-637.) On the other hand, if the evidence discloses a defendant entertained multiple criminal objectives independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. (People v. Perez (1979) 23 Cal.3d 545, 551-552; People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.) Applying these principles, we find defendant’s argument which contends that count 2 should be stayed, rather than imposed concurrently to be unpersuasive.
The offense of possession of burglary tools does not require the prosecution to prove the defendant had the intent to use the burglary tools to break into a particular structure. It is a general intent crime where the tools are obtained for the purpose of breaking and entering. (People v. Southard, supra, 152 Cal.App.4th 1079, 1087-1088.) As defendant was found with the burglary tools six days after he burglarized the Luong residence, imposition of a concurrent sentence may well be proper. Remand is thus required.
III
Disposition
The judgment is affirmed, and the matter is remanded for resentencing.