Opinion
A147612
09-27-2017
THE PEOPLE, Plaintiff and Respondent, v. TRAVIS JESSE MARESH, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. 1582560)
A jury convicted defendant Travis Jesse Maresh of first degree burglary, possession of a firearm by a felon, and related charges arising out of a burglary of a residence. On appeal, he contends the first degree burglary conviction is not supported by substantial evidence because the residence, which was undergoing renovations at the time of the burglary, was not "inhabited" within the meaning of Penal Code section 459. He also contends that his sentence for possession of a firearm by a felon should have been stayed pursuant to section 654. We agree that defendant's sentence for possession of a firearm by a felon should be stayed but otherwise affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Charles Vau, his wife, and his father-in-law, Jack Cox, owned a 5,000-acre ranch in Mendocino County. There were three homes on the property, including a residence referred to as the "big house," where Cox had resided for 35 years. Cox, who used a wheelchair, moved into another house on the ranch in March 2015 so that the big house could be renovated to meet his medical needs. The renovations were scheduled to take approximately 18 months. Cox's move was temporary, and he intended to move back into the big house after the renovations were completed. Vau and his wife visited the big house at least once a week during the renovation process. As of August 2015, some flooring had been removed, there was no kitchen in the residence, and there were no sleeping quarters. However, there was running water as well as a working sink and toilet during the renovations. Cox's personal property was stored in bedrooms located at one end of the big house.
On August 4, 2015, Earl Landsdowne, Mary Wisterman, defendant, and defendant's five-year-old son drove to the ranch jointly owned by Vau, his wife, and Cox. Landsdowne and defendant's son remained in the vehicle while defendant and Wisterman walked to the big house previously occupied by Cox. Defendant and Wisterman entered the big house through an unlocked sliding-glass door. They put items, including several firearms, into plastic garbage bags. They then started walking back to the location where Lansdowne had parked. Wisterman and defendant argued about which direction to go. Vau heard voices of a man and woman arguing while he was working in his office at the ranch. He climbed into his truck and positioned it so that the headlights illuminated the area where the voices were coming from. Vau saw two people duck into the bushes. Vau, who was armed with a rifle, ordered them to surrender. The woman, who was later identified as Wisterman, did as she was told. The man fled on foot.
It was subsequently discovered that the big house had been ransacked and that a number of items had been removed, including guns, casino chips, and a lamp. Vau estimated the loss at $12,000. In an interview with a Mendocino County Sheriff's deputy, defendant admitted that he and Wisterman had gone to the big house with the intent to steal property found there.
In a first amended information filed in November 2015, the Mendocino County District Attorney charged defendant with first degree burglary (§§ 459, 460), possession of a firearm by a felon (§ 29800, subd. (a)(1)), grand theft of a firearm (§ 487, subd. (d)(2)), and child endangerment (§ 273a, subd. (b)). A jury found defendant guilty as charged.
The trial court sentenced defendant to an aggregate term of four years eight months in state prison. The sentenced was composed of the midterm of four years for first degree burglary, plus a consecutive term of eight months (one-third the midterm) for possession of a firearm by a felon. The court stayed the sentence for grand theft of a firearm pursuant to section 654, and it imposed a concurrent six-month jail term for child endangerment. Defendant timely appealed.
DISCUSSION
1. Sufficiency of the evidence supporting first degree burglary conviction
Defendant argues that his first degree burglary conviction must be reversed because the evidence at trial was insufficient to establish that the big house was inhabited within the meaning of section 459. As we explain, defendant's argument lacks merit.
In reviewing a claim that the evidence is insufficient to support a conviction, "we must determine only whether, on the record as a whole, any rational trier of fact could find [the defendant] guilty beyond a reasonable doubt. [Citation.] We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Griffin (2004) 33 Cal.4th 1015, 1028.)
A "burglary of an inhabited dwelling house" is considered first degree burglary. (§ 460, subd. (a).) The term "inhabited" is defined in section 459 as "currently being used for dwelling purposes, whether occupied or not." The distinction between first degree burglary of an inhabited dwelling and second degree burglary of an uninhabited dwelling provides "increased protection for the privacy and enjoyment of one's home." (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1106.) " '[A] burglary of an inhabited dwelling involves an invasion of perhaps the most secret zone of privacy, the place where trinkets, mementos, heirlooms, and the other stuff of personal history are kept.' " (People v. DeRouen (1995) 38 Cal.App.4th 86, 91, disapproved on other grounds in People v. Allen (1999) 21 Cal.4th 846, 866 & fn. 21.) In order to achieve the legislative purpose of the statute, the term "inhabited dwelling house" has been interpreted broadly. (People v. Rodriguez, supra, at p. 1106.)
"A dwelling house is inhabited even though the occupant is temporarily absent." (People v. Marquez (1983) 143 Cal.App.3d 797, 801.) For purposes of assessing whether a dwelling house is temporarily or permanently unoccupied, we consider the intent of the occupant. (People v. Aguilar (2010) 181 Cal.App.4th 966, 971.) "A formerly inhabited dwelling becomes uninhabited only when its occupants have moved out permanently and do not intend to return to continue or to resume using the structure as a dwelling." (People v. Villalobos (2006) 145 Cal.App.4th 310, 320.) The duration of the occupant's absence from the dwelling is unimportant except to the extent it may be indicative of the occupant's intent to permanently move out or return. (People v. Marquez, supra, at p. 802.) "In addition, the Legislature has specifically rejected the view that the use of a dwelling as sleeping quarters is critical. 'Rather, such use is merely one circumstance the fact finder may consider.' " (People v. Aguilar, supra, at p. 971.)
Here, there was evidence that the occupant of the big house, Cox, viewed the home as his residence. He had lived there for 35 years and had only moved out temporarily. He intended to return. Indeed, the whole point of the renovations was to allow him to return to a home that could accommodate his medical needs. His personal belongings remained in the big house. It is irrelevant that he had been absent for six months at the time of the burglary, as long as his intent was to return. (See People v. Marquez, supra, 143 Cal.App.3d at pp. 800, 802 [dwelling inhabited even though occupant placed in conservatorship and moved to boarding residence had been gone for over two years].) It is also irrelevant that the big house was not being used as sleeping quarters during the renovations. In People v. Aguilar, the court concluded that an apartment was inhabited at the time of a burglary even though its occupant had been temporarily relocated to a hotel after a fire in a nearby unit damaged the apartment. (People v. Aguilar, supra, 181 Cal.App.4th at p. 971.) Because the occupant intended to return after the damage was fixed, the apartment was considered inhabited even though it could not be used as sleeping quarters in its damaged state. (Ibid.) The situation here is no different.
Defendant mentions that Cox had suffered a debilitating stroke that ultimately led to his death six days after the burglary, purportedly to support his claim that Cox did not intend to return to the big house. However, the fact that Cox died shortly after the burglary does not change the fact that his intent at the time of the burglary was to return to the big house. Just days before he died, Cox was capable of conversing and competent enough to sign legal documents that he had notarized. There is nothing to indicate that he no longer intended to return to the big house.
We conclude the evidence was sufficient to establish beyond a reasonable doubt that the big house was inhabited within the meaning of section 459. Defendant was therefore properly convicted of first degree burglary.
2. Section 654
Defendant contends that his eight-month sentence for possession of a firearm by a felon should have been stayed pursuant to section 654 because the burglary and his possession of a firearm stolen in the burglary arose out of a single objective and were part of an indivisible course of conduct. We agree.
Although multiple firearms were taken from the big house, the charge of possession of a firearm by a felon was premised upon defendant having custody or control of one particular firearm, a Savage Arms .30 caliber rifle. --------
Section 654 prohibits multiple punishment for a single act or an indivisible course of conduct. (§ 654; People v. Deloza (1998) 18 Cal.4th 585, 591.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331, 334.) If, on the other hand, the defendant is found to have harbored separate and multiple criminal objectives, he or she may be punished for each offense even though the crimes "shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639.) "Whether a course of criminal conduct violating more than one penal statute is committed with a single criminal intent or with multiple criminal objectives is ordinarily a question of fact for the trial court, whose implied finding of multiple criminal intent will be upheld if supported by substantial evidence." (People v. Green (1988) 200 Cal.App.3d 538, 543-544.)
In this case, the burglary and the taking of a firearm found in the big house were part of a single criminal objective—to steal personal property and abscond with it. (See People v. Atencio (2012) 208 Cal.App.4th 1239, 1243-1245.) The People claim the burglary was distinct from the possession of the gun because the confrontation with Vau as he and Wisterman were fleeing provided defendant with a "time out" allowing him to pause and reflect. According to the People, whereas Wisterman chose to surrender, defendant kept the firearm and fled, thereby making the possession of the gun distinct from the burglary itself. We are not persuaded.
The court rejected a similar argument in People v. Atencio, supra, 208 Cal.App.4th 1239. There, the defendant stole a gun from an acquaintance's home and abandoned it at another location the following day when confronted by police. (Id. at p. 1241.) The People argued that the purpose of possessing the gun on the day following its theft was distinct from the defendant's purpose in stealing it. (Id. at p. 1244.) The court disagreed, reasoning as follows: "To say that defendant's objective on the first day was to take the gun, while his objective on the next day was to possess it is cutting the point too fine. The only point in taking the gun was to gain possession of it, so that he could then do with it what he pleased . . . . The fact that defendant kept possession of the gun for a period of 24 hours did not, without more, alter his intent and objective such that his course of criminal conduct can be deemed to consist of more than one act for purposes of section 654." (Ibid.) Here, too, defendant harbored a single criminal objective. To say that defendant's objective was to take a gun during the burglary but that his objective transformed to possessing the gun after encountering Vau during his flight from the big house is "cutting the point too fine." (Ibid.)
The People's reliance on People v. Ratliff (1990) 223 Cal.App.3d 1401 and People v. Garfield (1979) 92 Cal.App.3d 475 is unavailing. In Ratliff, the defendant was convicted of robbery with use of a firearm plus possession of a firearm by a felon. (People v. Ratliff, supra, at p. 1404.) While the court held that section 654 did not prohibit multiple punishment in that case, it is notable that the defendant possessed the firearm before, during, and after the robbery. (Id. at p. 1413.) Thus, the defendant necessarily harbored two distinct objectives. Acquiring and possessing the firearm was not an objective of the robbery.
People v. Garfield, supra, 92 Cal.App.3d 475 is also inapposite. In that case, the defendant burglarized a residence. He was arrested six days later in possession of a pistol taken in the burglary. (Id. at p. 477.) The court concluded defendant could be punished for both the burglary and possession of a firearm by a felon. (Id. at p. 478.) The passage of time was not the dispositive factor. Instead, it was significant that the gun was not " 'cached' or stored with the rest of the fruits of the burglary in [the defendant's] residence or elsewhere, but was by his own admission in his personal possession immediately preceding his arrest . . . ." (Ibid.) Therefore, in Garfield there was evidence that the defendant's objective to possess the gun for his personal use was distinct from the original objective to take the gun. There is no such evidence here. Defendant did not remove the firearm from the burglary loot or keep it in his personal possession. Instead, he hid it along with the other proceeds from the burglary.
Accordingly, we conclude the evidence is insufficient to support a finding that defendant's objective in committing the burglary was distinct from his objective in possessing the firearms. The appropriate course of action under section 654 is to stay execution of the term with the lesser penalty. (See People v. Pena (1992) 7 Cal.App.4th 1294, 1312.) Thus, the eight-month term associated with the conviction for possession of a firearm by a felon must be stayed.
DISPOSITION
The judgment is modified to reflect that the eight-month sentence associated with the conviction for possession of a firearm by a felon is stayed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections and Rehabilitation. Except as so modified, the judgment is affirmed.
/s/_________
McGuiness, P.J. We concur: /s/_________
Pollak, J. /s/_________
Jenkins, J.