Opinion
A148537
09-29-2017
THE PEOPLE, Plaintiff and Respondent, v. TRESHAWN ROGERS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR314608)
A jury convicted Treshawn Rogers of first degree robbery (Pen. Code, § 211 (Count 1)), and first degree burglary (§ 459 (Count 2)). The trial court sentenced Rogers to six years for the robbery conviction, and stayed a six-year sentence for the burglary conviction (§ 654). The court ordered Rogers to pay a restitution fine of $3,600 (§ 1202.4, subd. (b)).
All undesignated statutory references are to the Penal Code.
Rogers appeals. First, he contends the prosecution relied on "a legally inadequate theory" of burglary. Second, Rogers argues there was insufficient evidence of his intent to steal. Third, Rogers contends the court improperly calculated the amount of the restitution fine.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged Rogers with first degree residential robbery (§ 211 (Count 1)), and first degree burglary, person present (§ 459 (Count 2)). As to both counts, the prosecution alleged the offenses were serious and violent felonies (§§ 667.5, subd. (c), 1192.7, subd. (c)).
A. Prosecution Evidence
Monte M., who was 14 years old in May 2015, was staying at a Super 8 motel in Vacaville, California, with his father, Aaron M., and his 13-year-old brother, Mason M. They were in room 306, and had been there for over a week. The brothers considered the motel their home. At about 7 p.m. on May 15, 2015, while their father was still at work, Rogers knocked on their door.
To protect the privacy interests of the victims, we refer to them by first name and last initial. (Cal. Rules of Court, rule 8.90(b).)
When Monte M. answered the door, Rogers said he was "looking for a girl." Before this encounter, the boys never met Rogers and had not "seen him around." Rogers described the woman, and they told Rogers they had seen a woman "downstairs in the lobby area" of the motel about 30 or 45 minutes earlier. Rogers said he was going to knock on other doors, and left. Monte M. saw Rogers continue down the hall knocking on doors.
About five minutes later, Rogers knocked on the door again. Monte M. told his younger brother not to open it, but Mason M. did so. Rogers asked to charge his phone so that he could call the girl. Mason M. told Rogers to go downstairs to charge his phone, but Rogers refused, so Mason M. let him in.
Rogers walked in, sat on a bed, and plugged in his phone to charge it. He used the charger that was in the room. Rogers stayed in the room for about 10 minutes, during which time he made about 15 to 20 calls. Rogers hung up when the calls went to voicemail.
Based on hearing a noise, Rogers told the boys to look outside for the woman. Monte M. looked out the window, and Mason M. looked out the door. While they were doing so, Rogers grabbed Monte M.'s Kindle Fire tablet. The brothers asked for it back, but Rogers refused. Rogers said he would give it back if Monte M. and Mason M. found the girl he was looking for, and he walked out the door. When Mason M. followed Rogers, he said "I'll beat you Niggers up if you come close to me."
Monte M. was terrified, and called the police. While doing so, he realized the room key was missing. He was scared, and he did not know if Rogers would come back to the motel room, but, about five minutes later, the police arrived. The brothers worried about getting into trouble with their father.
Sergeant Charlie Spruill, of the Vacaville Police Department, responded to the radio broadcast of a robbery at the Super 8 motel. Sergeant Spruill saw Rogers jump off a wall enclosing the motel's dumpsters, and Rogers tossed a black object over the wall. The sergeant detained Rogers. Another officer handcuffed Rogers and found the key for room 306 in Rogers's pocket. A detective retrieved the object Rogers threw over the wall, which was the tablet. Police also recovered from Rogers a cell phone and a watch. Both belonged to Aaron M., the boys' father, and were returned to him.
The brothers identified Rogers to police as the person who took the tablet and other items from their motel room. While in a police car on the way to the police station, and after he had been informed of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, Rogers said to an officer: "Why am I going to jail? They got their stuff back anyways. It's their fault they let me into the room."
B. Defense Evidence
Officer Daniel Torres, of the Vacaville Police Department, was also dispatched to the motel. Officer Torres briefly detained a woman whom Rogers claimed to be visiting at the motel. Jeremy Mauer, a criminal investigator for the defense, served a subpoena on the woman to testify for the defense.
The woman did not appear to testify, and, out of the presence of the jury, the court issued a bench warrant for her arrest. Later, the court recalled it, and issued an order to show cause why the woman should not be held in contempt.
C. Verdict and Sentence
The jury found Rogers guilty of first degree robbery (§ 211), and first degree burglary (§ 459). The jury found true the allegation that another person was present in the residence during the burglary (§ 667.5, subd. (c)). The court sentenced Rogers to six years for robbery, and stayed a six-year sentence for the burglary conviction (§ 654). The court ordered Rogers to pay a restitution fine of $3,600 (§ 1202.4, subd. (b)).
DISCUSSION
I.
The Prosecution's "Theory" Was Not "Legally Inadequate"
First, Rogers argues it was "legally inadequate under the instructions given" for the prosecution to tell the jury "[a] motel room is a building." According to Rogers, this statement "misled" the jury into focusing on Rogers's intent when he entered the motel room, instead of when he entered the "hotel building." We find no error in the court's instructions or the prosecution's statement. We begin with an overview of the crime of burglary, the court's jury instructions, and the closing arguments.
A. The Crime of Burglary
"Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." (§ 459.) "Every burglary of an inhabited dwelling house . . . or the inhabited portion of any other building, is burglary of the first degree." (§ 460, subd. (a).) "All other kinds of burglary are of the second degree." (Id., subd. (b).)
For entry into a room to constitute burglary, the "room must generally possess some characteristics showing that it protects a privacy, safety, or possessory interest." (People v. Garcia (2016) 62 Cal.4th 1116, 1124 (Garcia).) Hotel rooms are examples of interior spaces that provide their "occupants with an enhanced expectation of privacy and security similar to the stand-alone structures enumerated in section 459." (Id. at p. 1129; see also People v. Fleetwood (1985) 171 Cal.App.3d 982, 985-989 [affirming burglary conviction for robbery that occurred in hotel room]; People v. Villalobos (2006) 145 Cal.App.4th 310, 317 ["a motel or hotel room may be the site of a residential first degree robbery or burglary"].)
B. The Jury Instructions on Burglary
Both the prosecution and the defense requested instructing the jury in accordance with the language of CALCRIM Nos. 1700 and 1701. CALCRIM No. 1700 provides the prosecution must prove "[t]he defendant entered (a/an) (building/room within a building/locked vehicle/structure/___ <insert other statutory target>)." In his proposed instructions, Rogers provided no guidance on which "statutory target" to insert. The prosecution proposed using "building."
With regard to degrees of burglary, CALCRIM No. 1701 provides that "[f]irst degree burglary is the burglary of an inhabited (house [or a room within an inhabited house]/vessel/floating home/trailer coach/part of a building). [¶] A (house/vessel/floating home/trailer coach/part of a building) is inhabited if someone uses it as a dwelling . . . ." Once again, in his proposed instructions, Rogers did not specify the language to use. The prosecution requested "inhabited house," sought to tell the jury "[a] house is inhabited if someone uses it as a dwelling," and requested a special instruction informing the jury that "[a] motel room that is currently being used for the purposes of habitation is an inhabited dwelling."
The court declined to provide the prosecution's proposed special instruction out of concern it would be "directing the jury." The court noted "the general burglary instruction is pretty specific . . . [that] a building can be a place where you live if you are staying." The court decided to use "building" as the statutory target. Defense counsel did not object.
Thus, the jury instruction on burglary stated "the People must prove that: [¶] 1. The defendant entered a building; AND 2. When he entered a building, he intended to commit theft." The jury instruction on degrees of burglary stated "[f]irst degree burglary is the burglary of an inhabited part of a building. [¶] A part of a building is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged entry. [¶] All other burglaries are second degree." In addition, the court instructed the jury that for the "person was present" enhancement to apply, the prosecution had to prove "another person other than the defendant was present in the inhabited portion of the building during the commission of the offense."
C. The Closing Arguments
During closing arguments, the prosecution stated: "Count 2, the defendant entered a building. Okay. A motel room is a building. It's that simple. He entered a building, and when he entered the building, he intended to commit theft." Later, the prosecution stated "the real issue on Count 2 is, did the defendant enter into the hotel room looking to steal from Monte and Mason, or did he develop the idea once he got inside?" Defense counsel objected that this later statement misstated the law, but the court overruled the objection, stating "It's argument." The prosecution continued: "So did he go into the motel room looking to steal? Really, that's all you have to figure out on Count 2."
The prosecution argued that when Rogers realized the room was occupied by "two little kids" and no adults, he came back a second time with the intent to steal, and his request to charge his phone was merely a "false guise" or ruse to get inside. The prosecution argued the offense was first degree burglary because the motel room was the boys' home, and therefore it was "an inhabited dwelling." The prosecution argued the evidence also supported the enhancement because the two boys were present in the motel room when Rogers stole from them.
In its closing argument, the defense did not focus on the first element of the court's burglary instruction, or on the prosecution's assertion that "a motel room is a building." Instead, the defense focused on the second element, and questioned whether the evidence established Rogers intended to steal when he knocked on the motel room door a second time. The defense argued "[t]he intent . . . has to be formed when he entered to steal . . . and what matters in the residential burglary is that point when he crosses the threshold, what his intent was, not after he walks through the threshold of the door. [¶] If he formulates the intent to steal after he walks in, it is not a burglary under the law."
According to the defense, what really occurred was "a crime of opportunity," not a burglary, and Rogers did not decide to steal items from the motel room until "he was sitting on the bed charging his phone looking for a female." Defense counsel argued Rogers went to the motel "to meet an actual person," not to steal. In rebuttal, the prosecution reiterated that if Rogers "walked in the door" with the intent to steal property, then it was a burglary, even if Rogers did not know at the time what property was in the room.
D. Rogers Forfeited His Challenge to the Jury Instructions and the Prosecutor's Statement
In response to Rogers's argument that the prosecution "presented a legally inadequate theory," the Attorney General points out that "[t]o preserve a claim of prosecutorial misconduct during argument, a defendant must contemporaneously object and seek a jury admonition." (People v. Bonilla (2007) 41 Cal.4th 313, 336.) In his reply, Rogers asserts his argument is not one of prosecutorial misconduct. Instead, he contends that "under the incorrect jury instructions, the result was a legally inadequate theory." He argues the "superior court's instructions did not make that critical distinction between the structure, and the inner hotel room; on the contrary, the superior court's instructions only discussed the building itself."
To the extent we understand Rogers's argument, he contends the jury instructions on burglary were incomplete. But " ' " ' "a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested an appropriate clarifying or amplifying language." ' " ' " (People v. Tuggles (2009) 179 Cal.App.4th 339, 364.) Here, the court's burglary instruction—which used the term "building"— was legally correct because the statute expressly provides that "[e]very person who enters any . . . building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." (§ 459.) Rogers suggests the instruction was incomplete because the court could have added "room within a building" to the instruction. But Rogers did not object below to the instruction's language, or suggest adding to it. Therefore, his argument is forfeited. (See People v. Bolin (1998) 18 Cal.4th 297, 326 (Bolin) [claim of error in jury instruction waived where defense counsel did not object to proposed wording].)
E. Considering Rogers's Argument on Its Merits, the Prosecution Did Not Advance an "Incorrect Legal Theory"
In an effort to avoid forfeiture, Rogers relies on a statement from the dissenting opinion in People v. Morales (2001) 25 Cal.4th 34. According to Justice Brown, "when a prosecutor advances an erroneous theory of guilt that jury instructions fail to clarify, the result is legal error for which the reviewing court may reverse irrespective of a contemporaneous objection." (Id. at p. 54, fn. 2 (dis. opn. of Brown, J.).) The problem for Rogers, though, is that he fails to establish the prosecution advanced "an erroneous theory of guilt."
Rogers argues the statement "[a] motel room is a building" was incorrect because it led the jury to focus on Rogers's entry into the motel room, rather than his entry into "the larger hotel building of which this room was but a part." According to Rogers, even his trial attorney "was taken in: Instead of arguing the court's instruction—that the question was Mr. Rogers's intent when he entered the hotel building—she only tried to rebut the prosecutor's argument about Mr. Rogers's intent when he entered for the second time the hotel room inside."
But it was not incorrect for the jury to focus on Rogers's intent when he entered the motel room, as opposed to when he entered the motel. The burglary statute expressly provides that "[e]very person who enters any . . . room . . . or other building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." (§ 459.) A burglary conviction can be based on entry into a hotel or motel room because such rooms provide their "occupants with an enhanced expectation of privacy and security similar to the stand-alone structures enumerated in section 459." (Garcia, supra, 62 Cal.4th at p. 1129.) Here, room 306 of the motel could be the site of a burglary because it was occupied by Monte M., Mason M., and their father; the boys viewed it as their home; and it was separated from the rest of the motel by a locked door. This evidence "demonstrate[s] objectively reasonable expectations of privacy and security." (Ibid.)
In its instructions to the jury on burglary, the court used the term "building" as the statutory target rather than the term "a motel room" urged by the prosecution in its request for a special instruction: "[a] motel room that is currently being used for the purposes of habitation is an inhabited dwelling." The jury instruction given was a correct statement of the law. (§ 459.) When the prosecution told the jury "[a] motel room is a building," it was telling them to focus on the evidence establishing Rogers returned to the motel room inhabited by the two children. We reject Rogers's assertion the prosecution meant to suggest "an inner room is itself a building" or that it "conflated the building and the room." When reviewed in its proper context, we discern no error in the prosecution's statement.
Moreover, the jury instruction on degrees of burglary provided that "[a] part of a building is inhabited if someone uses it as a dwelling," and the jury instruction on the enhancement provided the prosecution had to prove "another person other than the defendant was present in the inhabited portion of the building." (Italics added.) Rogers's contention that these instructions compounded the problem makes no sense. Instead, like the prosecution's statement to the jury, these instructions properly focused on Rogers's intent the second time he entered into the motel room. We reject Rogers's argument on its merits.
II.
There Was Sufficient Evidence of Rogers's Intent to Convict Him of Burglary
Next, Rogers contends there was insufficient evidence he intended to steal when he entered "into the hotel building." Instead, Rogers argues his intent upon entering the hotel building was to find a woman. Second, Rogers argues there was insufficient evidence he intended to steal when he returned for a second time to the motel room because he was still looking for the woman and wanted to charge his phone.
We disagree. "In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Bolin, supra, 18 Cal.4th at p. 331.) "An appellate court must accept logical inferences that the jury might have drawn from the evidence . . . ." (People v. Combs (2004) 34 Cal.4th 821, 849.)
Rogers's first argument has no merit because, as explained in the preceding section, the jurors were not required to focus on Rogers's intent when he entered "the hotel building" rather than the motel room. Therefore, his intent when he entered the motel, as opposed to when he entered the motel room, is irrelevant.
Rogers's second argument fails because there was ample evidence Rogers intended to steal items from the motel room when he returned to it a second time. As Rogers concedes, "he did steal, and yes, he did later do what we might expect of a person who has stolen, he denied being on that floor, tried to shift blame to the boys for letting him in, and said they got their property back." Nevertheless, Rogers contends there was "no evidence" he intended to steal when he entered the room.
We are not persuaded. Based on the evidence of Rogers's first encounter with the boys, and his decision to return to the room five minutes later, the jury could reasonably infer that once Rogers discovered there were no adults in the room, just two teenage boys, he returned to the room intending to steal from them. Rogers refused to go downstairs to charge his phone, and he used the charger in the room rather than bringing his own charger. Therefore, the jury could conclude Rogers's stated reasons for entering the motel room were just an excuse to get inside. Moreover, Rogers's statement to the police that the victims were at fault for letting him into the room also supports the inference he intended to steal when he entered.
Rogers points to conflicting evidence, including his statements that he was looking for a woman when he knocked on motel room doors, the testimony of the brothers that they earlier saw a woman matching Rogers's description, and the police detention of a woman who knew Rogers. But even if Rogers was also trying to locate an acquaintance at the motel, this fact is not incompatible with the jury's determination that Rogers intended to steal from the teenage boys when he returned to their room. In any event, " ' "we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." ' " (People v. Snow (2003) 30 Cal.4th 43, 66.) Viewing the record as a whole, there was substantial evidence Rogers intended to steal when he entered the motel room.
On pages 29 and 30 of his opening brief, Rogers provides no citations to the record. By failing to do so, he violates California Rules of Court, rule 8.204(a)(1)(C), which states that each brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." --------
III.
The Restitution Fine Was Not Improper
Roger's final argument is that the court acted in an unauthorized manner or abused its discretion by ordering Rogers to pay a restitution fine of $3,600. We disagree.
A. Restitution
"In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (b).) "The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000)." (Id., subd. (b)(1).) "In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine . . . multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (Id., subd. (b)(2).)
B. The Court's Restitution Fine Was Commensurate with the Seriousness of Rogers's Robbery Offense
At Rogers's sentencing hearing, the court sentenced Rogers to the high term of six years in prison for first degree robbery, and six years for first degree burglary, but the court stayed the sentence for the burglary conviction pursuant to section 654. The court ordered Rogers to "pay $3600 pursuant to 1202.4; [and] $3600 pursuant to 1202.45, which is stayed, pending successful completion of parole . . . ." Rogers did not object to the amount of the restitution fine.
Rogers contends that if the court used the minimum amount set forth in section 1202.4, subdivision (b)(1), then it could have fined him $1,800 for the robbery conviction. According to Rogers, it is "manifest" that "either (1) the court arrived at $3,600 by also imposing another $1,800 fine on the stayed count two . . . or, (2) because of the silent record, that the court arrived at that amount arbitrarily or capriciously."
The Attorney General responds that Rogers forfeited these arguments because he did not object to the amount of the restitution fine. But Rogers argues in part that the restitution fine was unauthorized because if the court relied on the burglary conviction in calculating the fine, then it violated section 654. (People v. Soto (2016) 245 Cal.App.4th 1219, 1234-1235.) A reviewing court does have discretion to consider on the merits issues not preserved for review. (People v. Urbano (2005) 128 Cal.App.4th 396, 404 (Urbano).) Therefore, we will consider Rogers's arguments on their merits.
These arguments fail. The record is silent regarding how the court arrived at the amount of $3,600, but the court was not required to state its reasons. (§ 1202.4, subd. (b); see also Urbano, supra, 128 Cal.App.4th at p. 405.) The record does indicate, however, that the court viewed Rogers's robbery offense as serious because it imposed the high term of six years, noting the offense involved "a threat of violence" and the victims "were incredibly vulnerable." The court found Rogers "took advantage of them . . . . [¶] And there in that hotel room [were] the only possessions they have in this world; [it] didn't seem to bother [Rogers] to take those things and then threaten them on the way out the door; obviously, it had a big impact on them." Given these concerns, the court had discretion to impose a restitution fine for robbery greater than the minimum amount it could have imposed. The amount imposed was also well below the statutory maximum of $10,000. (§ 1202.4, subd. (b)(1).) Rogers has not established the restitution fine was statutorily unauthorized, or that the court arrived at the amount in an arbitrary or capricious manner.
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.