People v. Goode ( 2015 )

Filed 12/30/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
----
THE PEOPLE, C078760
Plaintiff and Respondent, (Super. Ct. Nos. CRF14619,
CRF14496, CRF14608)
v.
MARK ANTHONY GOODE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Yuba County, Julia L.
Scrogin, Judge. Affirmed as modified.
Julie Schumer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Mark Anthony Goode guilty of burglary (count 1) for
opening a metal storm door on a residence and attempted burglary (count 2) for jiggling a
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window on the same residence a few seconds later. The trial court sentenced defendant
to 16 months in prison for the burglary at the front door and to a consecutive eight
months for the attempted burglary at the window, finding that defendant had “[t]wo
separate intents to enter and burgle [the victim’s] home.”
On appeal, defendant contends his conviction for burglary must be reversed
because, in his view, “[t]he evidence was insufficient to establish [he] actually opened the
metal door,” and, in any event, “there was zero evidence . . . that he actually put some
part of his body on the interior side of that door.” He further argues that he cannot be
separately punished for the burglary at the front door and the attempted burglary at the
window because the evidence showed only a single, indivisible intent: to enter the
victim’s residence to commit a theft.
We disagree with defendant that the evidence was insufficient to prove he
committed a completed burglary at the front door, but agree that he cannot be separately
punished for burglarizing the victim’s home at the front door and then, only a few
seconds later, attempting to burglarize the home through a nearby window. Accordingly,
we will modify the judgment to stay the eight-month term on defendant’s conviction of
attempted burglary at the window (count 2) pursuant to Penal Code1 section 654 and will
affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was ultimately charged in this case with 27 different offenses, but only
two of those offenses (counts 1 and 2) are implicated by defendant’s arguments on
appeal, so we limit our recitation of the underlying facts to those two.
The victim of the two offenses, David Aros, lived in a house in Marysville. At
about 2:30 a.m. on April 2, 2014, Aros was sleeping on the couch in the living room of
1 All further section references are to the Penal Code.
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his house when he awakened to a sound that he thought came from the metal storm door
on the front door of the house. According to Aros, the storm door makes a particular
sound when it opens and particularly when it closes and he thought he heard that sound,
but he was not sure at first because he had been asleep. Aros “kind of stood up,” and
then “about a few seconds after that” he heard a little window on the side of the house
“jiggling,” like someone was trying to open it. That’s when Aros “knew for sure” that he
was not just hearing things and was “positive” he “did hear” the storm door.
After hearing the sound at the window, Aros looked out the back window of the
house and saw someone he identified at trial as defendant.
Following the incident, Aros talked to a Marysville police officer and told the
officer he was not sure if someone had tried to open the front door.
Defendant was ultimately charged with one count of first degree burglary and one
count of attempted first degree burglary for the incident at Aros’s house.
The prosecutor argued defendant was guilty of burglary because the opening of the
storm door constituted an entry into the house and defendant was guilty of attempted
burglary for trying the side window.
The jury found defendant guilty of both the burglary at the front door and the
attempted burglary at the side window. The trial court imposed a term of 16 months for
the burglary (consecutive to the principal term on a different conviction) and a
consecutive term of eight months for the attempted burglary, finding that defendant had
“[t]wo separate intents to enter and burgle [Aros’s] home,” which “warrants a separate
punishment.” With the terms imposed on the various other charges of which the jury
found him guilty and an on-bail enhancement allegation the court found was true, the
court sentenced defendant to an aggregate term of 12 years in prison and one year in jail.
Defendant timely appealed.
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DISCUSSION
I
Sufficiency Of The Evidence Of Burglary
Where, as here, a defendant challenges the sufficiency of the evidence to support
his conviction, “[t]he standard of review is well settled: On appeal, we review the whole
record in the light most favorable to the judgment below to determine whether it discloses
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. [Citations.] ‘ “[I]f the verdict is supported by substantial evidence, 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.” ’ [Citation.] ‘The standard of review is the same in
cases in which the People rely mainly on circumstantial evidence. [Citation.] “Although
it is the duty of the [finder of fact] to acquit a defendant if it finds that circumstantial
evidence is susceptible of two interpretations, one of which suggests guilt and the other
innocence [citations], it is the [finder of fact], not the appellate court which must be
convinced of the defendant’s guilt beyond a reasonable doubt.” ’ ” (People v. Snow
(2003) 30 Cal. 4th 43, 66.)
“An appellate court must accept logical inferences that the [finder of fact] might
have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal. 4th 342,
396.) “[A] jury may not rely upon unreasonable inferences, and . . . ‘[a]n inference is not
reasonable if it is based only on speculation.’ ” (People v. Hughes (2002) 27 Cal. 4th 287,
365.) “Before the judgment of the trial court can be set aside for the insufficiency of the
evidence, it must clearly appear that on no hypothesis whatever is there sufficient
substantial evidence to support the verdict of the [finder of fact].” (People v. Hicks
(1982) 128 Cal. App. 3d 423, 429.)
“A person who ‘enters any house . . . with intent to commit . . . larceny or any
felony is guilty of burglary.’ (§ 459.) It has long been settled that the slightest entry by
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any part of the body or an instrument is sufficient . . . .” (Magness v. Superior Court
(2012) 54 Cal. 4th 270, 273.) “For an entry to occur, a part of the body or an instrument
must penetrate the outer boundary of the building.” (Ibid.)
Here, defendant does not dispute that the storm door -- like a screen on a window
-- constituted the outer boundary of Aros’s home. (See People v. Valencia (2002) 28
Cal. 4th 1, 13 [“penetration into the area behind a window screen amounts to an entry of a
building within the meaning of the burglary statute”], disapproved on other grounds by
People v. Yarbrough (2012) 54 Cal. 4th 889, 894.) He argues, however, that the evidence
was insufficient to prove he entered the house at the front door either because there was
no substantial evidence that he “actually opened the metal outer door” or because “there
was zero evidence that he did anything more than that, i.e., that he actually put some part
of his body on the interior side of that door.” As we will explain, we disagree with
defendant on both points.
In arguing there was no substantial evidence that he opened the storm door,
defendant draws from his summary of Aros’s testimony the conclusion that Aros only
“thought someone had opened the outer door,” (italics added) but he was never “sure he
heard it.” But that is not a fair conclusion from Aros’s testimony because defendant’s
summary of that testimony is incomplete.
It is true, as defendant notes, that Aros testified he initially was not sure that what
he heard was the storm door. Once he heard someone jiggle a window, however, Aros
then became “positive” that he had, in fact, heard the sound made by the storm door, and
he held firmly to that testimony even in the face of vigorous cross-examination on the
point.
On direct examination, Aros testified, “I did hear it,” referring to the sound of the
storm door, but that he “wasn’t sure when it first happened.” (Italics added.) He then
testified that when he heard the jiggling at the window, that was when he “knew for sure”
that he was not just “hearing things.”
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On cross-examination, defense counsel established that Aros “[d]efinitely heard
the window” and then asked, “But [you] never heard the front door?” Aros replied, “No.
I did hear the screen. I wasn’t sure because I was woken up. Because you’re sleeping,
and then you get woken up, so then I’m like, ‘Am I dreaming? Am I hearing things?’
That type of thing.” As defense counsel continued to pursue the point, she asked Aros,
“So you’re not positive about the door, but you’re positive about the window?” He
responded, “Yes,” and she followed with, “Okay. But not positive about the door?”
Aros replied, “Well, after the window, then I am positive, yeah. But, I mean, that’s why I
was woken up.”
When his testimony is read as a whole and construed in the light most favorable to
the jury’s verdict, Aros can be understood to have testified that while he was initially not
sure he had heard the storm door because he had been sleeping, when he heard the
jiggling at the window he became positive that what he had heard was the storm door. To
the extent defendant suggests otherwise, there is nothing improper about the fact that
Aros’s “conclusion that someone had opened the [storm] door was influenced by his later
hearing someone fiddling with a side window.” It is a common human experience to
interpret sensory input by reference to surrounding circumstances. Here, Aros’s initial
uncertainty as to whether the sound he heard came from the storm door disappeared when
he heard someone jiggling the nearby window, because he drew the reasonable
conclusion that the person who had just jiggled the window must have opened the storm
door seconds before. Also, to the extent defendant tries to cast doubt on Aros’s
testimony because Aros told the police he was not sure if someone had tried to open the
front door, that argument goes nowhere because Aros can be understood to have been
referring to the front door itself, rather than the storm door, when talking to the police.
Indeed, that interpretation of Aros’s statement to the police is most consistent with his
testimony that he became certain that the first sound he heard came from the storm door
after he heard someone jiggling the nearby window a few seconds later. Thus, while
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Aros expressed uncertainty to the police as to whether someone had tried to open the
front door, he was certain that someone -- who turned out to be defendant -- had opened
the storm door.
For the foregoing reasons, there is substantial evidence in the record that
defendant opened the metal storm door. Defendant argues, however, that even if that is
true, “there was zero evidence that he did anything more than that, i.e., that he actually
put some part of his body on the interior side of that door.” According to defendant,
“Aros did not report seeing or hearing any such thing” and “[t]here was no physical or
forensic evidence to suggest [defendant] had done so”; therefore, there was no substantial
evidence defendant penetrated the area behind the storm door.
We disagree with defendant on this point because, as we have noted, “[a]n
appellate court must accept logical inferences that the [finder of fact] might have drawn
from the circumstantial evidence.” (People v. Maury, supra, 30 Cal.4th at p. 396, italics
added.) Here, the circumstantial evidence was sufficient to prove that defendant opened
the storm door and then, seconds later, jiggled the nearby window in an attempt to enter
the house to commit a theft. From these facts, the jury also could have reasonably
concluded that: (1) defendant opened the storm door as part of his initial attempt to gain
entry to the house; and (2) he must have entered the area behind the storm door and
unsuccessfully tried to open the front door before he proceeded to the window. It is true
Aros told the police that he was not sure if someone had tried to open the front door, but
the jury could have reasonably inferred that defendant must have done more than simply
open the storm door, given that his intent was to enter the house to commit a theft. That
Aros did not hear defendant trying to open the front door does not mean it did not
happen. Aros was asleep on the couch and woke up only when he heard the storm door,
which he testified “you hear . . . [more]” “when it shuts.” Thus, the jury could have
reasonably concluded that defendant opened the storm door, tried to open the front door,
then when that was unsuccessful, closed the storm door and proceeded to the nearby
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window and tried to gain entry to the house from there, and Aros awakened only in time
to hear the sound the storm door made when it closed. This is a reasonable, albeit
inferential, scenario based on all of the evidence, and as such we must conclude that the
jury based its verdict on that scenario, which it was entitled to do. Accordingly, there is
no merit to defendant’s challenge to his burglary conviction (count 1).
II
Section 654
Defendant next argues that the trial court erred in imposing a consecutive sentence
on his conviction of attempted burglary because “the evidence demonstrated that the
entry and attempted entry of the Aros residence through the front storm door and side
window, respectively, were pursuant to the single objective of gaining access to that
house and committing theft” and “there was no evidence that [defendant] had an
opportunity to reflect after the first entry of the door yet nevertheless moved on to the
window.”
For their part, the People contend “[t]he trial court could logically infer that
[defendant] had the opportunity to reflect and could have elected to cease his criminal
behavior” because he “had to close the front door on the Sixth Street side of the house,
decide to not leave the premises, elect to continue looking for an entry point, proceed
from the front door around the corner to the Pine Street side of the house, identify the
side window, decide he wanted to try to enter through the window, approach the window,
and begin prying it.”
We conclude that under the evidence here, defendant’s course of conduct at the
Aros residence was not divisible in time for purposes of section 654, and therefore the
trial court erred in imposing a consecutive term for the attempted burglary.
In pertinent part, subdivision (a) of section 654 provides that “[a]n act or omission
that is punishable in different ways by different provisions of law shall be punished under
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the provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.”
Even though section 654 refers to “[a]n act or omission,” in Neal v. State of
California (1960) 55 Cal. 2d 11, the California Supreme Court “opined that ‘[f]ew if any
crimes . . . are the result of a single physical act.’ [Citation.] Accordingly, the relevant
question is typically whether a defendant’s ‘ “course of conduct . . . comprised a divisible
transaction which could be punished under more than one statute within the meaning of
section 654.” ’ [Citation.] To resolve this question, the Neal court announced the
following test: ‘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.’ ” (People v.
Correa (2012) 54 Cal. 4th 331, 335-336.)
In Correa, the Supreme Court held that section 654 does not bar multiple
punishment when a single act gives rise to multiple violations of the same criminal
statute, overruling contrary dicta in a footnote in Neal. (People v. Correa, supra, 54
Cal.4th at pp. 334, 337.) The Supreme Court did not, however, overrule the principle
from Neal that a course of criminal conduct constitutes one act for purposes of
section 654 if all of the offenses committed in the course of conduct were incident to one
objective. “But decisions since Neal have refined and limited application of the ‘one
intent and objective’ test, in part because of concerns that the test often defeats its own
purpose because it does not necessarily ensure that a defendant’s punishment will be
commensurate with his culpability.” (People v. Kwok (1998) 63 Cal. App. 4th 1236,
1253.) For example, in People v. Beamon (1973) 8 Cal. 3d 625, disapproved on another
ground in People v. Mendoza (2000) 23 Cal. 4th 896, the Supreme Court stated “that a
course of conduct divisible in time, although directed to one objective, may give rise to
multiple violations and punishment.” (Beamon, at p. 639, fn. 11.) “Thus, a finding that
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multiple offenses were aimed at one intent and objective does not necessarily mean that
they constituted ‘one indivisible course of conduct’ for purposes of section 654. If the
offenses were committed on different occasions, they may be punished separately.”
(Kwok, at p. 1253.)
In Kwok, the court determined that the question of whether a course of criminal
conduct that involved multiple burglaries at the same residence is divisible in time
depends on “whether the defendant had the opportunity to reflect after the first entry, and
nevertheless entered the premises again” and on whether “each successive offense
created a new risk of harm.” (People v. Kwok, supra, 63 Cal.App.4th at pp. 1254, 1255.)
On the latter point, the court pointed out that “[l]aws against burglary are primarily
designed not to deter trespass or the supporting theft or felony intended by the burglar,
but rather ‘ “. . . to forestall the germination of a situation dangerous to personal
safety.” ’ ” (Id. at p. 1256.) The court also observed that because the defendant there
“entered the house on two separate occasions nine days apart, the factual situation [wa]s
distinguishable from the scenario in which a burglar makes repeated entries in rapid
succession.” (Id. at p. 1257.)
Here, there is no dispute that defendant acted with one criminal objective when he
opened the storm door, then tried to enter the house through a nearby window -- the
objective of gaining entry to the house and committing a theft inside. The question is
whether the trial court properly treated the two offenses as parts of a course of conduct
that was divisible in time -- or, in the words of the Kwok court, as having been
“committed on different occasions” (People v. Kwok, supra, 63 Cal.App.4th at p. 1237) --
because of the time that elapsed between defendant’s opening of the storm door and his
attempt to enter the house through the window. According to the People, the “few
seconds” that elapsed between the incident at the door and the incident at the window,
while short, were nonetheless sufficient to allow the trial court to reasonably conclude
that defendant “had the opportunity to reflect and could have elected to cease his criminal
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behavior,” and therefore the court permissibly treated the burglary and the attempted
burglary at Aros’s house as two separate acts that could be separately punished.
Where, as here, “the facts are undisputed[,] it is a question of law whether
section 654 should be applied.” (People v. Galvan (1986) 187 Cal. App. 3d 1205, 1218.)
The evidence here showed that defendant tried to gain entry to Aros’s house through the
front door, then a few seconds later tried to gain entry through a nearby window. As a
matter of law, we conclude the lapse of a few seconds between the two acts was not
sufficient to make defendant’s course of conduct divisible in time, such that he could be
punished separately for each act.
The People’s assertion that the few seconds that elapsed between the two acts
were sufficient to allow defendant to reflect and decide whether to continue his criminal
conduct, while literally true, does not fully answer the question of whether separate
punishment was permissible under section 654. As the court explained in Kwok, time to
reflect is relevant, but so is whether each offense created a new risk of harm. (People v.
Kwok, supra, 63 Cal.App.4th at pp. 1255-1256.) “ ‘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 (1975) 15 Cal. 3d 709, 715, quoting People v. Lewis (1969) 274 Cal. App. 2d 912,
920.) Here, the People do not point to any evidence suggesting that defendant’s attempt
to open a window a few seconds after he tried to open the front door created a new risk of
a dangerous confrontation between him and the occupants of the house. So far as can be
determined from the evidence presented, the window defendant tried to open was in the
same room as the front door, and Aros was the only occupant of that room at the time.
The risk that a situation dangerous to public safety would germinate was no greater as a
result of defendant’s attempt to enter that room by way of the window than it was a few
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seconds earlier as a result of defendant’s attempt to enter the room through the front door.
Under these circumstances, we conclude section 654 precluded the imposition of
punishment for the attempted burglary at the window separate from the punishment for
the burglary at the front door. Accordingly, the trial court erred in not staying the
sentence on the attempted burglary conviction under section 654.
DISPOSITION
The judgment is modified to stay the eight-month term on defendant’s attempted
burglary conviction (count 2) pursuant to section 654. As modified, the judgment is
affirmed. The trial court is directed to prepare an amended abstract of judgment and
forward the amended abstract to the Department of Corrections and Rehabilitation.
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Hull, J.
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