Opinion
E050819
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. SANTOS EDWARD RIOS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB900034)
ORDER MODIFYING OPINION AND DENYING
PETITION FOR REHEARING
[NO CHANGE IN JUDGMENT]
The petition for rehearing is denied. The opinion filed in this matter on January 4, 2012, is modified as follows:
1. In the "Discussion" section, subsection "B," "Remaining Burglary Contentions" is changed to read as follows:
B. REMAINING BURGLARY CONTENTIONS
Defendant contends his burglary conviction should be reversed because (1) substantial evidence does not support his burglary conviction; (2) his trial counsel was ineffective for failing to request a jury instruction regarding how a possessory interest in the house affects a burglary allegation; and (3) the trial court did not instruct the jury on how to evaluate circumstantial evidence. As set forth ante, defendant's burglary conviction must be reversed. Since the conviction is being reversed, we do not address defendant's ineffective assistance of counsel and circumstantial evidence contentions, because they have been rendered moot. (See People v. Mohammed (2008) 162 Cal.App.4th 920, 934 [not addressing remaining contentions after reversal.].) However, we must still address the substantial evidence issue, because if defendant's contention is correct, then he would be entitled to an acquittal. (People v. Cuccia (2002) 97 Cal.App.4th 785, 789.)
2. In the "Discussion" section of the opinion, a new subsection "C" is inserted as follows:
C. SUBSTANTIAL EVIDENCE
Defendant contends substantial evidence does not support his conviction for burglary (§ 459), because defendant was named on the lease and therefore had a possessory interest in the house. We disagree.
As discussed ante, "'When reviewing a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains 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.' [Citation] '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citations.] '[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt.' [Citation.]" (People v. Lewis, supra, 46 Cal.4th at p. 1289-1290, fn. omitted.)
"Section 459 provides in pertinent part: 'Every person who enters any house, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.' The statute retains two important aspects of common law burglary: 'the entry must invade a possessory right in the building and it must be committed by one who has no right to be in the building. [Citation.] Because the crime of burglary requires the invasion of a possessory right in a building, one cannot be found guilty of burglarizing one's own residence.' [Citation.]" (People v. Gill (2008) 159 Cal.App.4th 149, 158-159.)
"'Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime[,] or to escape[,] and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence.'" (People v. Gauze, supra, 15 Cal.3d at p. 715.) Based upon the foregoing principles, a defendant can be found guilty of burglary when he enters the home he shared with the victim when he is estranged from the victim, there have been prior threats to the victim's safety, there had been incidents of spousal abuse, and the victim fears for her safety. A defendant can be found guilty of burglary under these circumstances, despite being on the lease for the house, because under these circumstances there is a danger that arises from the defendant's mere entry into the house. (People v. Ulloa, supra, 180 Cal.App.4th at p. 610.)
Officer Betts testified defendant and Doe had broken up three months prior to the incident in this case, and defendant had moved out of the house. Doe told Betts she believed defendant was staying at his mother's or brother's house during that three month period. Lopez testified Doe and defendant had broken up two weeks prior to December 29, 2008, and defendant moved out of the house at that time. The foregoing evidence reflects defendant and Doe were estranged, and defendant was no longer living in the house with Doe. Accordingly, substantial evidence supports a finding defendant was estranged from the victim.
Next, in regard to prior abuse, Doe testified that in October 2008 she told the police defendant choked her while trying to take away her car keys. While testifying, Doe stated defendant did not choke her while trying to take her car keys, after blocking in her car, but he did push her upper chest, in order to hold her back while taking her keys. Doe stated defendant was "mad" during the October incident, and he was "[t]elling [Doe] what [she] was doing with everybody." The foregoing evidence reflects defendant angrily choked or pushed and held Doe while taking away her car keys, after he blocked her car into a driveway. Thus, there is substantial evidence of prior domestic abuse.
As to prior threats, Doe testified that during the October incident defendant was "mad" when speaking to Doe. Doe testified Lopez and her friend flagged down a police officer during the October incident, because defendant was trying to take Doe's keys and Doe "didn't know if [defendant] was going to go home later and argue with [her] or not." Doe also stated she was not sure if defendant would "go back to the house and argue with [her] and try to fight with [her]." Based upon Doe's testimony, in particular her fear defendant would go to the house to argue and fight with her, a trier of fact could reasonably infer defendant was making threats towards Doe during the October incident.
Further, Officer Betts testified that before defendant kicked in the door to the house, defendant called Lopez on the telephone. Defendant asked Lopez about Doe's whereabouts, and Lopez said Doe was not home. Defendant responded, "'You're lying. She's standing right by the heater.'" At which point, he kicked in the door of the house. Officer Betts also testified that when defendant telephoned Doe to ask her about her whereabouts, Doe was fearful and felt defendant was stalking her. The foregoing evidence supports a reasonable inference defendant made threats to Doe's safety, because Doe felt she was being stalked, and defendant confirmed the stalking threat by stating Doe's exact location in the house, despite not being inside the house at the time. Accordingly, we conclude substantial evidence supports the finding defendant threatened the victim.
Next, in regard to the victim's fear for her safety, Officer Betts testified defendant's telephone call to Doe, on her way home from work, caused Doe to "feel scared because she thought that [defendant] was stalking her and following her." As soon as Doe arrived home, she instructed Lopez to gather the children so they could leave the house; however, defendant soon thereafter began kicking the door of the house. In response, Doe "got scared and locked herself in the bathroom." The foregoing evidence reflects defendant caused Doe to fear for her safety, because she told Officer Betts she was scared, and she attempted to run away from defendant at every opportunity. Accordingly, we conclude substantial evidence supports the finding defendant caused Doe to fear for her personal safety.
In sum, there is substantial evidence that (1) defendant was estranged from the victim, (2) there were prior threats to the victim's safety, (3) there was a prior incident of domestic violence, and (4) the victim feared for her safety. As a result, the exception to the general burglary rule is applicable in this case—defendant could be found guilty of burglary despite being on the lease for the house, because under these circumstances there is a danger that arose from defendant's mere entry into the house. (People v. Ulloa, supra, 180 Cal.App.4th at p. 610.)
Defendant asserts the foregoing test regarding prior abuse and the victim's fear was improperly derived from dictum in the Supreme Court's opinion in People v. Gauze, supra. Defendant contends a victim's fear should not be a factor in considering whether a defendant has an unconditional possessory interest in the premises. Defendant asserts the proper inquiry is whether defendant's interest in the property had been modified either by court order (e.g., a restraining order), eviction, agreement to no longer pay rent, or surrendering keys. Defendant acknowledges that, in Ulloa, this court accepted the prior abuse/victim's fear test; however, defendant asserts Ulloa reached an incorrect conclusion.
We disagree that the test set forth in People v. Gill, supra, 159 Cal.App.4th at page 161, and approved by this court in Ulloa is incorrect. In particular, we disagree the test was derived from dictum. The prior abuse/victim's fear test was derived from the portion of the Gauze opinion in which the Gauze court distinguishes Gauze from People v. Sears (1970) 2 Cal.3d 180 (Sears) (overruled on an issue related to coerced confessions in People v. Cahill (1993) 5 Cal.4th 478, 510, fn 17). (People v. Gauze, supra, 15 Cal.3d at p. 715.) In Gauze, the defendant entered an apartment that he shared with two other people and shot one of his housemates. (Id. at p. 711.) Our Supreme Court concluded the defendant could not be found guilty of burglarizing his own home. (Id. at p. 714.)
In Sears, the defendant had moved out of his family home, to a hotel, three weeks prior to May 16, 1963. (Sears, supra, 62 Cal.2d at p. 740.) On May 16, the defendant went to the family home, where his wife and children still lived. The defendant entered the home through the unlocked front door. (Ibid.) While at the house, the defendant struck his wife with a steel pipe, stabbed his neighbor, and killed his daughter. (Id. at p. 741.) Our Supreme Court rejected the defendant's argument that the burglary instruction should not have been given, because (1) a burglary can occur even if a person has permission to enter a building—"[t]he entry need not constitute a trespass"; and (2) since the defendant had moved out of the house, he could not claim a right to enter the residence without permission. (Id. at p. 746.)
In Gauze, our Supreme Court distinguished Sears. The court explained that Sears was different from Gauze because "no danger arises from the mere entry of a person into his own home, no matter what his intent is. He may cause a great deal of mischief once inside. But no emotional distress is suffered, no panic is engendered, and no violence necessarily erupts merely because he walks into his house." (People v. Gauze, supra, 15 Cal.3d at p. 715.) In other words, the difference between Sears and Gauze is that, in Sears, the defendant was estranged from his wife and no longer living in the house, so his presence in the house would cause emotional distress, panic, and possibly violence. Meanwhile, the defendant in Gauze was still living in the apartment at the time of the shooting, and therefore his entry into the apartment would not cause the fear and panic associated with a person who was estranged from the household. It is from this distinguishing of the cases that the prior abuse/victim's fear test arose—the factors are designed to reflect the differences between the Sears and Gauze facts, i.e., estrangement, prior abuse, threats, and fear. By evaluating the four factors, it can be determined whether a case is more closely related to Sears or Gauze. Accordingly, we are not persuaded that the prior abuse/victim's fear test is incorrect, because it is derived from Supreme Court precedent, and assists with determining whether a case is more closely aligned with the facts of Sears or the facts of Gauze.
Next, defendant points to the evidence that defendant's belongings were still in the house and defendant still had his keys to the house. Defendant's argument highlights the fact there is evidence in the record supporting a finding defendant was still living in the house, and he was not estranged from Doe. We agree with defendant that there is evidence contradicting the finding defendant was estranged from Doe. Nevertheless, as set forth ante, there is evidence supporting the finding the two were estranged, and defendant had not lived in the house for three months. Accordingly, we do not find defendant's argument to be persuasive, because the fact that evidence is contradicted does not affect whether substantial evidence exists in the record. (People v. Semaan (2007) 42 Cal.4th 79, 88.)
3. In the "Discussion" section of the opinion, the existing subsections are redesignated as follows:
D. ASSAULT WITH A DEADLY WEAPON
E. SECTION 654: BURGLARY CONVICTION
F. TELEPHONE LINE: SUBSTANTIAL EVIDENCE
G. VAGUE STATUTE
H. IMPLIED AMENDMENT
I. SECTION 654: DAMAGING TELEPHONE LINE
4. The "Disposition" is replaced as follows:
DISPOSITION
Defendant's burglary conviction (§ 459) is reversed. Since the reversal is based on instructional error alone, defendant may be retried on the burglary charge. (People v. Hallock (1989) 208 Cal.App.3d 595, 607.) If defendant is not retried, then the trial court is directed to issue an amended abstract of judgment and to forward it to the appropriate prison authorities. If defendant is retried, then the appropriate paperwork should be forwarded to prison authorities following the retrial. In all other respects, the judgment is affirmed.
Except for these modifications, the opinion remains unchanged. The modification does not affect a change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur: McKINSTER
Acting P. J.
CODRINGTON
J.