Opinion
A101174. A103895.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. RONALD LEON USSERY, Defendant and Appellant. In re RONALD LEON USSERY, on Habeas Corpus.
Defendant Ronald Ussery appeals from the judgment entered upon his conviction of first degree burglary following a jury trial. He challenges the sufficiency of the evidence to establish that he intended to commit theft when he entered the victims residence. His principal contention, however, is that the trial court calculated his local conduct credits incorrectly because it classified the burglary as a violent felony when such had not been pleaded and proved. Asserting ineffective assistances of counsel in failing to raise the sentencing error in the trial court, defendant has filed a petition for a writ of habeas corpus, which has been consolidated with the appeal. We affirm the judgment and deny the writ petition.
Factual and Procedural History
Defendant was convicted of first degree burglary under Penal Code section 459, and he admitted three prior convictions. Defendant was sentenced to the base term of four years, which was doubled as a second strike under section 667, subdivision (e)(1) and section 1170.1, and he was sentenced to an additional five years under section 667, subdivision (a), for a total of 13 years. Defendant was credited with a total of 650 days, which consisted of 565 days for actual time served and 85 days of local conduct credits. Under section 4019, defendant would have been entitled to 282 days of local conduct credits, but he received credit for only 15 percent of the time in local custody pursuant to section 2933.1 on the basis that the offense for which he was convicted was a violent felony as defined in section 667.5, subdivision (c)(21).
All further statutory references are to the Penal Code, unless otherwise noted.
The abstract of judgment carries forward an earlier arithmetic error reflecting that 649 is the sum of 565 plus 85. The appellate briefs alternate between references to defendant receiving 649 and 650 days of credit. On remand, the abstract should be corrected to reflect that defendant received 650 total days of credit for time spent in custody.
The burglary charge arose out of a home invasion that took place on April 23, 2001. That morning, 13-year-old Dennis G., who was home alone ill, awoke to a "really loud bang" and to his dogs bark, and heard footsteps coming down the hall. A man whom Dennis later identified as defendant pushed open the door to the bedroom, looked in, and visually "scanned" the room. When defendant saw Dennis, he yelled an expletive and fled.
Dennis called his mother and, about 10 to 15 minutes after his encounter with the intruder, called 911. When the police arrived, Dennis described the man he had seen and accompanied the officers as they checked the house and yard. The side gate, which was usually closed, was open. The back door to the garage had been kicked off its hinge and the door from the garage to the house was also kicked open. The wooden frames of both doors were splintered and the locking mechanism on one door was broken. There were shoe prints on both doors.
Because defendant fit Denniss description of the intruder, the police stopped him and his brother about seven-tenths of a mile from the G. home. Dennis testified that it takes approximately thirty minutes to walk, and ten minutes to run, from the home to the location where defendant was stopped. When defendant was stopped, approximately 16-27 minutes had elapsed since the perpetrator fled from the home. Defendant explained that he and his brother were in the neighborhood looking for a girl who his brother knew, but he was unable to provide the name or address of the girl. Dennis was brought to the location where defendant was stopped and identified defendant as the intruder. Defendant was taken into custody and the police confiscated one of his tennis shoes and his sweatshirt, which was covered with plant material.
The police compared defendants shoe with the prints found on the broken doors. A forensic specialist testified that the latent shoe print was made by a shoe of the same size, width, length, and sole pattern as defendants shoe. A crime scene investigator testified that the plant material on defendants sweatshirt was similar to that of a tree located in the backyard, next to one of the doors that had been kicked in.
Discussion
Sufficiency of the evidence.
Defendant contends that his first degree burglary conviction cannot stand because there was insufficient evidence that he had the requisite intent to commit theft upon entry into the G. house.
In reviewing the sufficiency of the evidence, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 562.) "Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of facts verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it." (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.)
Burglary is committed when a person enters an inhabited dwelling house with the intent to commit a felony or theft. (§ 459.) The intent must be present at the time of entry but may be proved by circumstantial evidence. (People v. Waidla (2000) 22 Cal.4th 690, 734; Reed v. Superior Court (1965) 238 Cal.App.2d 321, 323.) Since burglary arises upon entry with felonious intent, it is not necessary that a theft be actually carried out. (See People v. Aguilar (1989) 214 Cal.App.3d 1434.) "[I]n showing that a defendant entered the premises with felonious intent, the People can rely upon reasonable inferences drawn `from all of the facts and circumstances disclosed by the evidence, since felonious intent is rarely proved through direct evidence." (In re Anthony M. (1981) 116 Cal.App.3d 491, 501, citing People v. Matson (1974) 13 Cal.3d 35, 41.)
The jury was specifically instructed that "[b]oth direct and circumstantial evidence are acceptable as a means of proof. Neither is entitled to any greater weight than the other. [¶] However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only [¶] (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendants guilt must be proved beyond a reasonable doubt. . . . [¶] Also, if the circumstantial evidence permits two reasonable interpretations, one of which points to the defendants guilt and the other to his innocence, you must adopt the interpretation that points to the defendants innocence, and reject the interpretation which points to his guilt." With this admonition, the jury found that defendant had the requisite intent.
The inference that defendant had the intent to commit theft upon entering the G.s home is supported by his actions. He unlawfully and forcibly broke into the home. This alone can establish a reasonable inference of intent. (People v. Gonzales (1967) 253 Cal.App.2d 502, 506.) Common sense dictates that there are few lawful reasons for an individual to break a door in order to enter, uninvited, anothers home. Once in the home, defendant walked down the hallway and opened the door to the room Dennis was occupying. Defendant "scanned" the room and, upon seeing Dennis, was surprised, uttered an expletive, and fled. The jury could have inferred from defendant "scanning" the room that he was looking for something valuable to take. Additionally, it is reasonable to deduce from defendants sudden flight that he was intending to steal but fled to avoid being caught. (See People v. Moody (1976) 59 Cal.App.3d 357, 363 [if no crime was committed after entry, intent to commit theft at the time of entry may be inferred from flight from premises]; People v. Cannady (1972) 8 Cal.3d 379, 391 ["jury could reasonably infer that defendants flight reflected consciousness of guilt"].)
Additionally, when the police questioned defendant regarding his reasons for being within a mile of the G. home, he answered that he was going to visit his brothers friend for whom he was unable to give the police a name or address. The jury could reasonably conclude from this dubious alibi that defendant was not really in the neighborhood to see a friend but, instead, was there to commit burglary. The footprints, plant fiber, and Denniss positive identification of defendant clearly indicate that he was the perpetrator of the break-in and the evidence amply supports the jurys finding that he unlawfully entered the residence intending to commit theft.
Local conduct credits
Defendants principal contention is that at sentencing the trial court erroneously classified his burglary conviction as a violent felony. Accordingly, he asserts that the courts imposition of the 15 percent ceiling on his local conduct credits deprived him of credit to which he was entitled for time served. He points out that the classification of his offense as a violent felony also will adversely affect post-conviction credits to which he may become entitled. (See People v. Caceres (1997) 52 Cal.App.4th 106, 111.) He argues that an "occupancy allegation" was not pleaded and proved as required to classify the burglary as a violent felony.
First, contrary to the Peoples assertion, defendant has not waived his right to challenge this determination by failing to object to the sentence below. (People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139 [defendant did not waive issue of whether his presentence credits should be subject to the 15 percent limitation since the calculation is purely mathematical, and the defendants argument involved statutory interpretation of first impression].) " `[T]he waiver doctrine should apply to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices. " (Ibid.) "The calculation of credits is not discretionary and there are no `choices. " (Ibid.) Since we conclude that defendant retains the right to challenge the asserted sentencing error, the petition for a writ of habeas corpus is moot.
Turning to the merits of defendants argument, section 2933.1, subdivision (a), places a 15 percent limit on the amount of local conduct credit that may be earned by a person convicted of a violent felony listed in section 667.5, subdivision (c). Among the violent felonies listed in section 667.5, subdivision (c), is "Any burglary of the first degree . . . wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." (§ 667.5, subd. (c)(21), italics added.) The information in this case charged defendant with burglarizing "an inhabited dwelling house occupied by DENNIS [G.]" Dennis testified that he was at home at the time of the burglary, saw and later identified defendant as the perpetrator, and called the police. The jury instructions did not direct the jury to find whether Dennis was present at the time of the burglary, but they did explain the elements of burglary and defined an "inhabited dwelling house," in accordance with CALJIC No. 14.52, as "a structure which is occupied and customarily used as a dwelling. It is inhabited although the occupants are temporarily absent." The verdict which the jury returned found that defendant "did then and there enter the inhabited dwelling house occupied by DENNIS [G.]"
Section 2933.1 provides: "(a) Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in section 2933. [¶] . . . [¶] (c) Notwithstanding Section 4019 . . . the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail . . . following arrest and prior to placement to the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a)."
Although the information alleged that defendant burglarized "an inhabited dwelling house occupied by DENNIS [G.]," defendant argues that this allegation provided no notice that if convicted he would be denied full local credits under section 2933.1, and did not provide notice that Dennis was alleged to have been in the house at the time of the burglary, as required to constitute a violent felony under section 667.5, subdivision (c)(21).
So long as the necessary facts are alleged, the applicable code sections need not be identified in the pleadings to provide the necessary notice. (People v. Mancebo (2002) 27 Cal.4th 735, 753 (Mancebo); People v. Deas (1972) 27 Cal.App.3d 860, 863 ["We know of no law that requires a criminal pleading to cite the code section applicable to facts properly pleaded"].) Defendant supports his argument that the information—as well as the form of the verdict—failed to indicate that Dennis was present when the burglary occurred by referring to the jury instruction that a dwelling house is inhabited "although the occupants are temporarily absent." "[T]he jury was thus told," defendant argues, "that the presence of an occupant did not matter." However, in order to allege first degree burglary, it is necessary to allege only the burglary of an inhabited dwelling house (§ 460), which appears to be all that is customarily pled. (See Deerings Ann. (1998 supp.) § 459, p. 92.) The information and the verdict here, however, added to the customary language the qualification "occupied by DENNIS [G.]" which, in context, could only have meant that Dennis was occupying the house at the time of the burglary. The instruction on which defendant relies points out that a dwelling house is "inhabited" for this purpose even if the occupants are temporarily absent, but it does not say that it is "occupied" if the occupant is absent, and it seems clear from the record that nobody understood these words in such a manner. The entire case against defendant was predicated on Dennis having been in the house when he observed an intruder. There was never any suggestion that Dennis was not at home when the perpetrator entered; the only defense was that defendant was not the intruder.
Defendant relies heavily on Mancebo, supra, 27 Cal.4th 735, but that case is distinguishable. Mancebo was convicted of multiple forcible and violent sex offenses against two victims. The information alleged under section 667.61 (the "One Strike" law) that the crimes against one victim were committed under the circumstances of kidnapping and gun use, and the crimes against the other victim were committed under the circumstances of gun use and tying or binding. (Mancebo, supra, at p. 738.) The information did not allege a multiple-victim circumstance pursuant to section 667.61, subdivision (e)(5). (Mancebo, supra, at p. 739.) At sentencing, the trial court relied on the multiple-victim circumstance to impose One-Strike sentences, on the rationale that it had been pleaded and proved that the defendant committed offenses against two victims, and the gun use was then used to support additional enhancements.
The Supreme Court held that this was improper because the defendant did not receive adequate warning that "if he was convicted of the underlying charged offenses, the court would consider his multiple convictions as the basis for One Strike sentencing under section 667.61 subdivision (a). Thus, the pleading was inadequate because it failed to put defendant on notice that the People . . . would seek to use the multiple victim circumstance to secure indeterminate One Strike terms under section 667.61, subdivision (a) and use the circumstance of gun use to secure additional enhancements under section 12022.5(a)." (Mancebo, supra, 27 Cal.4th at p. 745.) The trial courts substitution of the unpled multiple-victim circumstances as a basis for imposing the One Strike sentences violated the express pleading provisions of the One Strike law and also violated defendants due process right to fair notice of the statutory bases of sentence enhancements. (Id . at pp. 745, 754.).
What is at issue here, however, is a sentence credit calculation rather than sentence enhancements as in Mancebo. The latter add to the sentence to which the defendant is subject and are within the discretion of the prosecution to charge and the province of the jury to decide. (See Apprendi v. New Jersey (2000) 530 U.S. 466 [statute authorizing a sentence enhancement based on findings of the court rather than the jury violates due process.].) In contrast, the former do not increase the sentence for the crime and they are mandatory. While the allegations in Mancebo did not give the defendant fair notice of the potential consequences of a conviction, here there was no basis for confusion since there was no reason to add the allegation that the residence was occupied by Dennis other than to invoke the provisions of section 2933.1. Moreover, even if the pleadings were unclear, defendants due process rights are not implicated by this nondiscretionary sentencing calculation in the same way that Mancebos were by the sentence enhancement. (Cf. Mancebo, supra, 27 Cal.4th at p. 754 [due process not implicated in same way when trial court declares a defendant ineligible for probation as when a defendants sentence is enhanced]; see also People v. Van Buren (2001) 93 Cal.App.4th 875, 880 ["Section 2933.1 is not a sentencing statute"].)
Moreover, any conceivable error in this respect plainly was harmless. Defendants defense was that he was not the perpetrator of the burglary and that Dennis had misidentified him as the man who had entered his bedroom. Any confusion about how sentence credits would be calculated could not have affected defendants course of action at trial, and the calculation in all events is mandatory.
Disposition
The judgment is affirmed, except that the abstract of judgment shall be corrected to reflect 650 total days of credit for time spent in custody. Defendants petition for writ of habeas corpus is denied.
We concur: McGuiness, P. J., Parrilli, J.