Opinion
H042582
10-11-2017
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO JOEL ZEPEDA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. F27571)
Defendant Armando Joel Zepeda was convicted by jury trial of first degree burglary (Pen. Code, § 459) and misdemeanor theft (§ 484), and the jury found true a special allegation that a nonaccomplice was present in the residence during the commission of the burglary (§ 667.5, subd. (c)(21)). Defendant was granted probation. On appeal, he challenges (1) the sufficiency of the evidence to support the jury's true finding on the special allegation, (2) the trial court's failure to instruct on the special allegation, and (3) his trial counsel's failure to request instructions on the special allegation. We conclude that substantial evidence supports the special allegation and that the absence of jury instructions on it was immaterial because it was not required to be proved to the jury but to the trial court. However, we find that defendant was not awarded any conduct credit despite his entitlement thereto. Accordingly, we will modify the court's order to award defendant conduct credit.
Subsequent statutory references are to the Penal Code.
I. The Prosecution's Evidence At Trial
In September 2014, Luis Luna was living in a room at 101 Roache Road in Watsonville. Two other people were also living at 101 Roache Road. The sole access from the street to 101 Roache Road is through a metal gate that leads to a passageway or hallway. The metal gate was kept open all the time. Off of the passageway are several doors. The door to the main house is to the left, while the door to Luna's room and the door to a second room are to the right. No one was living in the main house. At the end of the passageway is the door to a storage room. Although no one was living in the storage room in September 2014, a man had lived there previously. One roof covers all of the rooms and the main house, and the entire structure gives the appearance of a single-family home.
At about 7:30 a.m. on September 13, 2014, Luna, who was the only resident home at the time, heard a "scraping" noise from the movement of a rock that held a door closed. After he heard the scraping noise, he heard the sound of someone moving around in the storage room. Luna did not keep any belongings in the storage room; the owner of the home, who did not live there, kept items in the storage room. These sounds went on for at most 10 minutes. Luna looked out of his window and saw defendant "come out" of the house with a box in his hands. Luna called the police, and defendant was arrested nearby.
II. Procedural Background
Defendant was charged by amended information with first degree burglary and misdemeanor theft, and it was specially alleged that a nonaccomplice was present in the residence during the commission of the burglary.
During in limine motions, the prosecutor explained how he had crafted the burglary instruction. "[A]s a matter of understanding, the house we're talking about, I have a picture of, it had a front metal gate. And once you pass through that front metal gate, there is a hallway and then there's a door that's purple. And that's the room that the People argue the box was in. And that's the room that was burglarized. . . . [¶] . . . [¶] . . . And I would be arguing . . . that once someone enters through this metal gate, they actually entered the property under the law."
The trial court's pre-argument instructions to the jury did not mention the special allegation. The prosecutor argued: "There's two doors we're talking about. One is that front metal door. And remember we heard evidence of what's inside that door, you look down the hall and to the left is the main house, straight is the purple room, to the right is Mr. Luna's room, and another renter. . . . [¶] The structure, the building, starts at that black gate." He made no mention of the special allegation. Defendant's trial counsel argued that Luna had mistakenly identified defendant as the man he had seen leaving the house.
The court's post-argument instructions to the jury mentioned the verdict form concerning the special allegation. "[I]f you do find that he is guilty of burglary and you do find that it's in the first degree, then the next special allegation sheet: We, the jury in the above-entitled cause, having found the defendant guilty of first degree burglary, find him [sic] to be, and then you fill in not true or true, that a person was present during the commission of that offense."
The jury returned guilty verdicts on both counts and found the burglary to be first degree. The jury also returned the special allegation verdict form filled out to "find it to be TRUE that a person was present during the commission of that [first degree burglary] offense."
Defendant's trial counsel brought a section 1181, subdivision (7) motion seeking to vacate the jury's finding on the special allegation on the grounds that it was contrary to the evidence, that the jury had not been instructed on it, and that the verdict form had not required a finding that the person was present in the residence. He conceded that this was "not an issue that I was considering in our defense strategy at trial and it's not something that I really actually considered until after the verdict . . . ." The trial court denied the motion. "I understand that [defendant's trial counsel] is saying that in light of the specific logistics then an argument can be made as to whether [Luna] was indeed present on the property at the time of the offense, but I don't think there was any confusion of the facts of this case and I don't think there was any confusion to the jury regarding the circumstances presented." "I didn't even find this issue in play in this case."
The trial court placed defendant on probation with imposition of sentence suspended on the condition that he serve 365 days in jail, and he was given 128 days of credit for actual custody time served but no conduct credit. Defendant timely filed a notice of appeal.
III. Discussion
A. Sufficiency of the Evidence
Defendant contends that the evidence was insufficient to support the jury's true finding on the special allegation. He claims that, because the storage room and Luna's room had separate doors, and "[t]he storage room was never used as a residence at any time," Luna's room and the storage room were "functionally separate."
A first degree burglary offense qualifies as a violent felony "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).) The consequence of a violent felony finding is that the defendant's conduct credit "shall not exceed 15 percent of the actual period of confinement," and the defendant "shall accrue no more than 15 percent of worktime credit." (§ 2933.1)
Defendant's challenge to the sufficiency of the evidence is based in part on his misstatement of the evidence that was presented at trial. He claims that there was "a passageway leading solely to [the storage room]" and that "Luna's room was only reachable by a separate door from the outside, as was the main part of the house." The evidence established that the passageway led not only to the door to the storage room but also to the door to the main house, the door to Luna's room, and the door to another room. Both the door to the storage room and the door to Luna's room were within the same passageway that was separated from the exterior by a metal gate. Thus, it was not true that the passageway served only the storage room. Nor is it true, as defendant claims, that the storage room "was never used as a residence." Luna testified that a man had previously lived in the storage room. We consider defendant's argument under an accurate understanding of the evidence presented at trial.
"Q. What is that? [¶] A. That's the door to the room from which he took those things. [¶] Q. That would be the purple door? [¶] A. Yes." "Q. Was anyone living behind that purple door? [¶] A. There was someone living there before." --------
Defendant relies heavily on People v. Singleton (2007) 155 Cal.App.4th 1332 (Singleton). In Singleton, the defendant entered an apartment in an apartment complex while the apartment's resident "was outside the apartment itself, down the hall, around the corner, yet within the locked gate restricting access to the third story of the building." (Singleton, at p. 1337.) The Court of Appeal held that the resident was not " 'present in the residence' " when the defendant entered it. "The plain meaning of 'present in the residence' is that a person, other than the burglar or an accomplice, has crossed the threshold or otherwise passed within the outer walls of the house, apartment, or other dwelling place being burglarized. 'The threshold line of the building is located at the doorways into the apartments. One who stands on the stairway would not be considered "inside" the building under ordinary parlance.' [Citation.] Certainly, it would not comport with the ordinary and plain usage to consider someone standing outside, around the corner, and down the hall from an apartment to be present in that apartment." (Singleton, at pp. 1337-1338.)
Singleton is inapplicable here because the evidence at trial demonstrated that 101 Roache Road was not an apartment complex but a single residence. The photographs of 101 Roache Road introduced at trial depict a single-family residence. Although Luna, as a tenant living in one room of the residence, may not have had the owner's permission to use every room in the residence, his presence inside his room in this single-family residence established that he was within the "threshold line" of the residence's exterior walls when defendant entered the storage room, which was simply another of the residence's rooms.
Despite defendant's attempts to distinguish it, we find People v. Harris (2014) 224 Cal.App.4th 86 (Harris) to be closely on point. The defendant in Harris entered a "guestroom" in a "converted garage" while the victims were in their bedroom in the "main house." (Harris, at p. 89.) The guestroom could not be accessed from within the main house but only by an exterior door. (Harris, at p. 90.) "[T]he guest quarters were physically attached to the main residence, were covered by the same roof, and had been used on occasion by the victims as their bedroom. The room lacked cooking facilities, which made it dependent upon the rest of the house. In construction and use, the guestroom was a part of the main residence." (Ibid.) The defendant in Harris, relying on Singleton, claimed that the main house and the guestroom were "like separate units in an apartment house." (Ibid.) The Court of Appeal rejected this argument and held that "residence" as used in section 667.5, subdivision (c)(21) "extend[s] to rooms that do not offer direct access but adjoin, share a common roof, and are functionally connected." (Harris, at p. 91.)
Luna's room, the storage room, the absent resident's room, and the main house were physically attached, covered by the same roof, and shared a passageway from which all of them could be accessed. Neither Luna's room nor the storage room was a separate apartment. The storage room was an interconnected, functionally dependent part of the entire single-family residence, and Luna was present in one of the rooms of the single-family residence when defendant entered the storage room. Substantial evidence supports the jury's finding that a nonaccomplice was present in the residence when defendant entered it.
B. Absence of Jury Instructions on Special Allegation
Defendant contends that reversal is required because the trial court "gave no instruction" to the jury on the special allegation. He contends that the error is "reversible per se" or at least prejudicial federal constitutional error.
A violent felony finding is not an enhancement. Its significance is that it limits the conduct and worktime credit that a defendant may accrue or utilize toward fulfilling a jail term or prison sentence. (§ 2933.1.) "[T]he question whether a defendant's current felony offenses were 'violent' (§ 667.5), and thus limited his credits under section 2933.1, was 'part of the trial court's traditional sentencing function' [citation], rather than a question that had to be decided by the jury. Although the federal Constitution requires that any fact, ' "[o]ther than the fact of a prior conviction, . . . that increases the penalty for a crime beyond the prescribed statutory maximum . . . be submitted to a jury, and proved beyond a reasonable doubt" ' [citation], facts invoked to limit conduct credits do not increase the penalty for a crime beyond the statutory maximum" and therefore need not be proved beyond a reasonable doubt to a jury. (People v. Lara (2012) 54 Cal.4th 896, 901 (Lara).) While section 667.5, subdivision (c)(21) required that the special allegation be "charged and proved," it was not necessary to prove the special allegation to a jury. "[P]roof that a first degree burglary falls within section 667.5, subdivision (c)(21), is properly presented to the sentencing court." (People v. Garcia (2004) 121 Cal.App.4th 271, 279; accord Lara, at p. 901 [citing Garcia with approval].) Consequently, the absence of jury instructions on the special allegation was not error.
C. Conduct Credit
At the time of the sentencing hearing, defendant had served 128 days in jail. The court granted him 128 days of credit against the 365-day jail term that it imposed as a condition of probation, but it awarded him no conduct credit. Although the true finding on the special allegation meant that defendant's conduct credit would be limited to 15 percent on a prison sentence, he was eligible to earn full section 4019 conduct credit against the jail term that he was required to serve as a condition of probation. (In re Carr (1998) 65 Cal.App.4th 1525, 1536.) The record contains no indication of any basis for denying him the 128 days of conduct credit to which he appears to have been entitled. The parties agree that the appropriate remedy is for this court to modify the trial court's order to award defendant 128 days of conduct credit. We will do so.
IV. Disposition
The order is modified to award defendant 128 days of conduct credit under section 4019. As modified, the order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.