People v. Stevenson CA3 ( 2021 )

Filed 3/30/21 P. v. Stevenson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C090897
v. (Super. Ct. No. 18FE022419)
DEASHAWN ANTHONY STEVENSON,
Defendant and Appellant.
A jury found defendant Deashawn Anthony Stevenson guilty of three attempted
burglaries. The trial court denied probation, sentenced defendant to five years
four months in prison, and imposed mandatory minimum fines and assessments.
Defendant now contends (1) there is insufficient evidence to support his
convictions, (2) the trial court abused its discretion in denying probation, and (3) we
should remand the matter to give the trial court an opportunity to consider his ability to
pay the fines and assessments pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas).
1
We conclude the convictions are supported by sufficient evidence and defendant
forfeited his challenges to the denial of probation and the fines and assessments by failing
to assert his contentions in the trial court. Accordingly, we will affirm the judgment.
BACKGROUND
In the early morning of November 24, 2018, a loud noise woke K.L., who looked
out a bedroom window and saw a man trying to get into K.L.’s side garage door by using
his shoulders to try to push it open. When the man could not open the garage door, he
tried unsuccessfully to open a locked guest bedroom window and a locked master
bedroom window. The man next moved to the kitchen door and was trying to open it.
K.L. screamed at the man and the man left.
Between 4:00 a.m. and 5:00 a.m. that same day, S.R. woke to the sound of his
bedroom screen door sliding open. When S.R. peered outside between the sliding door’s
curtains, he saw a man going to his kitchen door and trying to open it by turning the outer
doorknob.
In addition, D.P. heard a loud noise coming from his backyard. Surveillance
footage of his home from that morning showed a man jumping over his fence at
5:40 a.m., looking through windows, manipulating a door handle, and then jumping over
a fence to leave.
Around 8:20 a.m. that day, K.L. saw the man again and called 911. Defendant
was arrested.
In September 2019, the jury found defendant guilty of three attempted burglaries.
(Pen. Code, §§ 664/459.)1 In two sentencing hearings based on two cases, the trial court
denied probation and sentenced defendant to an aggregate five years four months in
prison. The trial court noted that defendant was eligible for probation but agreed with the
1 Undesignated statutory references are to the Penal Code.
2
probation officer’s recommendation in denying it. Defendant did not object to the denial
of probation.
Consistent with defense counsel’s request for imposition of the minimum amount
of fines and fees, the trial court ordered defendant to pay a $300 restitution fine
(§ 1202.4), a court operations assessment of $120 (§ 1465.8), and a court facilities
assessment of $90 (Gov. Code, § 70373). Defendant did not object or assert an inability
to pay the imposed fine and assessments.
DISCUSSION
I
Defendant concedes the sufficiency of the evidence that he was the man who
trespassed on the three properties, but he claims there is insufficient evidence that he
attempted to burglarize the homes. He argues the fact that he may have touched the
doors does not mean he intended to enter the residences to commit a felony.
When considering a challenge to the sufficiency of the evidence to support a
conviction, including a conviction that relies on circumstantial evidence, we review the
whole record in the light most favorable to the judgment to determine whether it discloses
substantial evidence from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt, according due deference to the trier of fact. (People v. Zaun
(2016) 245 Cal.App.4th 1171, 1173-1174 (Zaun).)
We “ ‘must accept logical inferences that the [finder of fact] might have drawn
from the circumstantial evidence.’ [Citation.]” (Zaun, supra, 245 Cal.App.4th at
p. 1174.)
“ ‘Every person who enters any house . . . with intent to commit grand or petit
larceny or any felony is guilty of burglary.’ (Pen. Code, § 459.) ‘An attempt to commit a
crime consists of two elements: a specific intent to commit the crime, and a direct but
ineffectual act done toward its commission.’ (Pen. Code, § 21a.)” (Zaun, supra,
245 Cal.App.4th at p. 1174.)
3
In Zaun, the defendant was convicted of burglary, attempted burglary, and
receiving stolen property. Defendant and his three companions committed a series of
residential burglaries with the same modus operandi: one of them knocked on the door or
rang the doorbell, and if no one answered they would enter and steal from the home.
(Zaun, supra, 245 Cal.App.4th at pp. 1172-1173.) Twice, someone answered the door,
and the group left. (Zaun, at p. 1173.)
This court ruled there was substantial evidence to support defendant’s two
convictions for attempted burglary, explaining: “[W]hile a jury might have concluded
that defendant and his associates did not form the intent to burglarize the homes until
they determined the homes were unoccupied, that was not the only reasonable conclusion
available to the jury. A jury could also reasonably conclude, as we presume the jury did
here, that defendant and his associates had the intent to enter the homes and commit theft
when they went to the front door and only abandoned that intent when someone answered
the door. Under that scenario, defendant and his associates had the specific intent to
commit burglary in each case, and the appearance of the [occupants] at their respective
doors served to interrupt the intended crimes, making the actions up to that point
ineffectual acts done toward the commission of burglaries. These are logical inferences
that this court must accept on review.” (Zaun, supra, 245 Cal.App.4th at p. 1174.)
Likewise here, there is substantial evidence of defendant’s intent to commit three
burglaries. On three occasions in the early hours of the same morning, defendant probed
the outside of different homes, unsuccessfully trying to open various windows and doors.
A jury could reasonably conclude, as we presume the jury did here, that defendant had
the intent to enter the homes and commit theft when he acted in that way, only
abandoning that intent when unable to enter. That is a logical inference that we must
accept on review. Thus, there was sufficient evidence of intent to support the three
attempted burglary convictions.
4
Defendant notes there is no evidence he had burglary tools or gloves, and it later
appeared he was staggering and not acting normal. But even without evidence of
burglary tools and gloves, the jury could infer that defendant intended to commit
burglaries but was ineffectual. Moreover, evidence that defendant was staggering and not
acting normal several hours after the incidents does not necessarily negate such an
inference. His claim of insufficient evidence lacks merit.
II
Defendant next contends the trial court abused its discretion in denying probation.
He argues the denial was based on an improper factor not supported by the evidence.
The People counter that defendant forfeited this claim because he did not object on this
basis in the trial court. We agree with the People.
“A party in a criminal case may not, on appeal, raise ‘claims involving the trial
court’s failure to properly make or articulate its discretionary sentencing choices’ if the
party did not object to the sentence at trial. [Citation.] The rule applies to ‘cases in
which the stated reasons allegedly do not apply to the particular case . . . ,’ but the rule
does not apply when the sentence is legally unauthorized [citation].” (People v. Gonzalez
(2003) 31 Cal.4th 745, 751.) It is only if the trial court fails to give the parties any
meaningful opportunity to object that the rule becomes inapplicable. (Id. at p. 752.)
Here, the record indicates the trial court gave defendant a meaningful opportunity
to object to the denial of probation, but defendant did not object. Under the
circumstances, his contention is forfeited.
III
Defendant further argues the matter should be remanded to give the trial court an
opportunity to consider his ability to pay the imposed restitution fine and assessments
pursuant to Dueñas. The People once again counter that defendant forfeited this claim on
appeal.
5
Defendant was sentenced after Dueñas was decided, but he did not assert it, or
assert his inability to pay the imposed fines and assessments, at sentencing. Instead,
defendant’s counsel asked the trial court to impose minimum fines and fees. Under the
circumstances, defendant forfeited his challenge to the restitution fine and assessments.
DISPOSITION
The judgment is affirmed.
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
MURRAY, J.
6