People v. Brown CA2/2

Filed 8/24/20 P. v. Brown CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B295442
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA109769)
v.
BERNARD BROWN, JR.,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of Los
Angeles County. James D. Otto, Judge. Modified and affirmed
with directions.
Randall Conner, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael C. Keller and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Bernard Brown, Jr. appeals the judgment entered following
a jury trial in which he was convicted of four counts of first
degree residential burglary (counts 1, 2, 4, and 5; Pen. Code,1
§ 459) and one count of driving or taking a vehicle without
consent (count 3; Veh. Code, § 10851, subd. (a)). As to count 2,
the jury found true the allegation that another person other than
an accomplice was present in the residence during the burglary.
(Pen. Code, § 667.5, subd. (c).) Appellant admitted a prior
conviction for driving or taking a vehicle without consent
pursuant to section 666.5, and two prior convictions that
qualified as strikes and as prior serious felony convictions (§ 667,
subd. (a)(1)). The trial court imposed an aggregate sentence of 64
years to life.2
Appellant contends and respondent agrees that appellant’s
convictions on counts 4 and 5 for first degree residential burglary
should be reduced to second degree burglary and the matter
remanded to the trial court for resentencing. We agree. We
reject appellant’s further contention that section 654 prohibits
separate punishments for counts 1, 4 and 5 as well as his
argument that counsel was ineffective for failing to make this
meritless argument. Finally, we find substantial evidence
supports appellant’s conviction on count 5.
1 Undesignated statutory references are to the Penal Code.
2Appellant’s sentence included a concurrent 12-year four-
month probation revocation sentence in Los Angeles County
Superior Court case No. NA105258.
2
FACTUAL BACKGROUND3
In June 2018, John Atkinson and Valerie Adams lived in
separate units of an apartment complex in Long Beach. The
complex had a gated parking structure on the first floor; the
residents’ apartments were two floors above the garage. Cars
could enter the garage through an automated gate with a remote
control. Pedestrians could access the garage through the same
gate or by entering the apartment complex and then the garage
through locked doors requiring a key.
On the evening of June 24, 2018, Adams drove her Honda
Civic into the parking garage, parked, and locked the car.
Between 9:00 and 10:00 that night, Adams’s daughter, Tammy
Brawner, drove her Mercedes Benz into the garage and parked it
alongside the Honda. She locked the car and went to her
mother’s apartment where she spent the night.
Atkinson pulled his Chevy Camaro into the parking garage
around 1:15 a.m. on June 25, 2018. He parked in his assigned
space next to Adams’s Honda and the Mercedes, locked his car,
and went to his apartment.
When Atkinson went to his car around 7:15 a.m. on
June 25, 2018, he discovered his car’s front passenger side
window had been shattered during the night. A pair of glasses, a
Louis Vuitton wallet, a black wallet that Atkinson used for work,
an iPod, a bag containing sports gear, and a set of keys were
3 In this appeal, appellant challenges only his burglary
convictions on counts 1, 4, and 5 of the five-count information
filed on October 3, 2018. The facts underlying counts 2 and 3 of
the information, which pertain to two separate offenses, are not
relevant to this appeal. We therefore omit recitation of those
facts.
3
missing from the car. The black wallet contained Atkinson’s
work ID, a medical card, debit card, and his driver’s license.
Atkinson called the police and reported the break-in and
theft. Having noticed the front driver’s side window of the
Mercedes next to his car had been shattered, he went upstairs to
inform Adams and Brawner of the damage to the cars.
Brawner found that the front driver’s side window of the
Mercedes had been completely smashed out, and the glove
compartment and center console were open. Two wallets
containing Brawner’s identification, three debit cards and cash
were missing. An Apple laptop computer and a few other items
had been taken as well. The front driver’s side window of the
Honda was also smashed out and interior compartments stood
open. Adams reported that a pair of eyeglasses, an eyeglass case,
an iPad, and a pair of Nike shoes were missing.
Atkinson contacted his credit union around 9:00 a.m. and
learned that his debit card had been used at a McDonald’s that
morning. Records from a Long Beach Target store showed that a
purchase was attempted using Atkinson’s and Brawner’s debit or
credit cards at a self-checkout machine on the morning of June
25, 2018. A surveillance video from the Target showed appellant
and another person using the self-checkout machines and leaving
the store.
Appellant was arrested a few weeks later, on July 18, 2018.
At the time of his arrest he was carrying a men’s Louis Vuitton
wallet, which Atkinson identified as the one that had been stolen
from his car. Appellant was found in possession of a device for
breaking car windows when he was arrested. Appellant
resembled the person making purchases with the stolen credit or
debit cards on June 25, 2018, in the Target surveillance video,
4
and his shoes with distinctive shoelaces matched those of the
person in the video. In addition, appellant’s tattoos on his arm
and an angel wing tattoo on his neck were consistent with the
tattoos visible on the subject of the surveillance video.
DISCUSSION
I. The Convictions on Counts 4 and 5 Must Be
Reduced to Second Degree Burglary
A. Standard of review
Appellant asserts that the evidence was insufficient to
support first degree burglary convictions on counts 1, 4 and 5.
Instead, he maintains that the evidence supported only one count
of first degree burglary because he only entered the apartment
complex parking garage one time and there was no evidence
anyone was inside the vehicles when they were burglarized. The
standard of review for appellant’s claim is well settled: “When
the sufficiency of the evidence to support a conviction is
challenged on appeal, we review the entire record in the light
most favorable to the judgment to determine whether it contains
evidence that is reasonable, credible, and of solid value from
which a trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] Our review must presume in
support of the judgment the existence of every fact the jury could
reasonably have deduced from the evidence.” (People v. Zaragoza
(2016) 1 Cal.5th 21, 44.)
B. Appellant committed a first degree burglary when he
entered the inhabited building’s parking garage and
second degree burglaries when he broke into the
unoccupied vehicles
Appellant contends and respondent concedes that the
single entry into the garage of the inhabited apartment building
5
supports only one conviction for first degree residential burglary,
and appellant’s convictions on counts 4 and 5 must be reduced to
second degree burglary. We agree.
“Burglary is committed when a person ‘enters any . . .
building’ with the intent of committing ‘larceny or any felony.’ ”
(People v. Yarbrough (2012) 54 Cal.4th 889, 890; People v.
Montoya (1994) 7 Cal.4th 1027, 1041 (Montoya) [“burglary
consists of an act⎯unlawful entry⎯accompanied by the ‘intent to
commit grand or petit larceny or any felony’ ”]; § 459.) There are
two degrees of burglary: A burglary of an inhabited
dwelling⎯residential burglary⎯is of the first degree; “[a]ll other
kinds of burglary are of the second degree.” (§ 460, subds. (a) &
(b); Yarbrough, at p. 892.)
Courts give the term “inhabited dwelling” a broad, inclusive
definition, focusing on whether the dwelling is used as a
residence. (People v. Cruz (1996) 13 Cal.4th 764, 776; People v.
Thorn (2009) 176 Cal.App.4th 255, 261 (Thorn).) “[T]he term
‘inhabited dwelling house’ means a ‘structure where people
ordinarily live and which is currently being used for dwelling
purposes. [Citation.] A place is an inhabited dwelling if a person
with possessory rights uses the place as sleeping quarters
intending to continue doing so in the future.’ ” (Cruz, at p. 776;
Thorn, at p. 261.)
Numerous courts have found an attached garage to be
functionally connected to the building to which it is attached, and
thus part of the inhabited dwelling for purposes of first degree
burglary. (See, e.g., People v. Debouver (2016) 1 Cal.App.5th 972,
981–982 [secured underground garage was integrated part of
apartment complex]; People v. Harris (2014) 224 Cal.App.4th 86,
89–90 [attached garage converted to guestroom with no direct
6
access to the main house was part of the inhabited dwelling];
Thorn, supra, 176 Cal.App.4th at pp. 262–263 [carports located
directly underneath apartments designated for residents’ parking
were “ ‘functionally interconnected’ with the inhabited dwelling”];
In re Edwardo V. (1999) 70 Cal.App.4th 591, 594 [garage
attached to residential duplex with no direct access to living units
qualifies as an inhabited dwelling house under § 460]; People v.
Fox (1997) 58 Cal.App.4th 1041, 1047 [trial court properly
instructed jury that, when garage is attached to inhabited
dwelling, it is considered part of the inhabited dwelling]; People v.
Ingram (1995) 40 Cal.App.4th 1397, 1402, 1404 [garage with no
direct access to house was functionally connected to residence
where it shared roof with residence], overruled on other grounds
in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8.)
Here, appellant was charged and convicted of three counts
of first degree burglary⎯one count for each car he broke into in
the same residential parking garage. But as appellant correctly
maintains, the evidence established only one count of first degree
burglary for a single entry into the apartment complex garage
with the intent to commit theft and the actual theft of items from
Atkinson’s Chevy charged in count 1. There was no evidence
appellant entered the garage more than once with the intent to
commit theft, and thus no evidence that he committed more than
one first degree residential burglary. (See People v. Washington
(1996) 50 Cal.App.4th 568, 578–579 [“every entry with the
requisite intent supports a separate conviction”].)
On the other hand, there was substantial evidence that
appellant broke into the Honda and the Mercedes intending to
commit theft. There was no evidence the cars themselves were
inhabited. Accordingly, as appellant contends, the evidence
7
supported convictions on counts 4 and 5 for second degree
vehicular burglary, but not first degree residential burglary.
(§§ 459, 460, subd. (b).)
Section 1181, subdivision 6, permits an appellate court to
modify a verdict, finding or judgment where “the evidence shows
the defendant to be not guilty of the degree of the crime of which
he was convicted, but guilty of a lesser degree thereof, or of a
lesser crime included therein, . . . without granting or ordering a
new trial.” (People v. Cardona (1983) 142 Cal.App.3d 481, 484
[reducing first degree burglary conviction to lesser offense where
evidence insufficient to support finding that the property was
inhabited, but there was no doubt of defendant’s guilt as to
second degree burglary]; see People v. Daly (1992) 8 Cal.App.4th
47, 57; People v. Tubby (1949) 34 Cal.2d 72, 79 [modifying
judgment on appeal and affirming as modified where evidence
insufficient to support murder in the first degree, but
“unquestionably sufficient to support a conviction of second
degree murder”].)
Because the evidence was insufficient to support first
degree burglary convictions on counts 4 and 5, but was clearly
sufficient to support convictions of second degree burglary, the
judgment must be modified by reducing the degree of the crimes
8
on counts 4 and 5 from first to second degree.4 The matter must
then be remanded to the trial court for resentencing.5
II. Section 654 Does Not Prohibit Separate
Punishments on Counts 1, 4 and 5
Appellant contends that separate punishments for counts 1,
4 and 5 are prohibited under section 654 because they arose from
an indivisible course of conduct.6 He thus asserts that in
accordance with section 654, the trial court must impose midterm
sentences on counts 4 and 5 and suspend execution of sentence on
those counts. We disagree.
4 In light of our holding on this issue, appellant’s claims of
ineffective assistance of counsel with respect to his convictions on
counts 1, 4 and 5 are moot, and we need not address them. (See
People v. Herrera (2006) 136 Cal.App.4th 1191, 1198 [“ ‘an action
that originally was based on a justiciable controversy cannot be
maintained on appeal if all the questions have become moot by
subsequent acts or events’ ”]; In re Carr (1981) 116 Cal.App.3d
962, 964, fn. 1 [issue becomes moot when relief sought is
granted].)
5 Upon resentencing, the trial court may reexamine all of
its sentencing choices in consideration of the entire sentencing
scheme. (People v. Hill (1986) 185 Cal.App.3d 831, 834 [“rule is
justified because an aggregate prison term is not a series of
separate independent terms, but one term made up of
interdependent components. The invalidity of one component
infects the entire scheme”]; People v. Bautista (2005) 129
Cal.App.4th 1431, 1438.)
6 Although the issue was not raised below, it is
nevertheless cognizable because “[a]n unauthorized sentence is
reviewable on appeal regardless of whether it was objected to at
trial.” (People v. Rivera (2019) 7 Cal.5th 306, 349.)
9
A. Applicable law
Section 654, subdivision (a) provides: “An act or omission
that is punishable in different ways by different provisions of law
shall be punished under 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. An
acquittal or conviction and sentence under any one bars a
prosecution for the same act or omission under any other.”
(§ 654, subd. (a); People v. Correa (2012) 54 Cal.4th 331, 335
(Correa).) When a defendant suffers multiple convictions for a
single act or course of conduct and section 654 applies to bar
multiple punishment, “the trial court must stay execution of
sentence on the convictions for which multiple punishment is
prohibited.” (People v. Reed (2006) 38 Cal.4th 1224, 1227 (Reed);
Correa, at p. 337.)
By its plain terms, section 654 applies only to “[a]n act or
omission that is punishable in different ways by different
provisions of law.” (§ 654, subd. (a), italics added; Correa, supra,
54 Cal.4th at p. 341.) Thus, the statute only protects against
multiple punishments for a single act or course of conduct; it does
not prohibit multiple convictions for various offenses that may
result from the same act or omission. (Correa, at pp. 336–337;
Reed, supra, 38 Cal.4th at p. 1226 [“In general, a person may be
convicted of, although not punished for, more than one crime
arising out of the same act or course of conduct”].)
Our Supreme Court has explained that “the purpose of
section 654 is to ensure that a defendant’s punishment will be
commensurate with his culpability. (See, e.g., People v. Oates
(2004) 32 Cal.4th 1048, 1063 . . . ; [People v.] Latimer [(1993) 5
Cal.4th 1203,] 1211; People v. Perez (1979) 23 Cal.3d 545, 550–
10
551 . . . ; Neal [v. State of California (1960)] 55 Cal.2d [11,] 20.)”
(Correa, supra, 54 Cal.4th at p. 341.) In furtherance of the
statute’s aim, its “protection has been extended to cases in which
there are several offenses committed during ‘a course of conduct
deemed to be indivisible in time.’ ” (People v. Harrison (1989) 48
Cal.3d 321, 335 (Harrison).) That objective, however, would not
be served by applying section 654 as “a bar to multiple
punishment for multiple violations of the same provision of law.”
(Correa, supra, 54 Cal.4th at p. 341.)
Accordingly, courts have held section 654 inapplicable in
certain situations. For example, section 654 does not bar
multiple punishments when the defendant has engaged in an act
of violence against multiple victims. Section 654 is also
“inapplicable to a course of conduct if the defendant ‘ “entertained
multiple criminal objectives which were independent of and not
merely incidental to each other.” ’ [Citation.] The application of
this second exception ‘ “ ‘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. Newman (2015) 238
Cal.App.4th 103, 112; Harrison, supra, 48 Cal.3d at p. 335.)
Finally, section 654 does not prohibit multiple punishments
where the defendant’s course of conduct⎯even if it is directed to
one objective⎯is divisible in time. (People v. Gaio (2000) 81
Cal.App.4th 919, 935; People v. Beamon (1973) 8 Cal.3d 625, 639,
fn. 11 [“a course of conduct divisible in time, although directed to
one objective, may give rise to multiple violations and
punishment”].) “This is particularly so where the offenses are
temporally separated in such a way as to afford the defendant
opportunity to reflect and to renew his or her intent before
11
committing the next one, thereby aggravating the violation of
public security or policy already undertaken.” (Gaio, at p. 935.)
In People v. Bowman (1989) 210 Cal.App.3d 443, 448, the
court found no violation of section 654 in the trial court’s
imposition of consecutive sentences where the defendant had
broken into a car dealership, stolen supplies from an office, and
broken into vehicles to steal electronics. The court explained:
“Here defendant did not commit a single break-in as contended,
but rather committed multiple break-ins, each with a separate
felonious intent. While the felonious intent in each instance was
the same, this does not make the various violations incidental to
each other or to one primary criminal objective. Thus, even
though the violations were part of an otherwise indivisible course
of conduct in that they occurred during one night, it was within
the trial court’s discretion to impose consecutive sentences.”
(Ibid.; see also People v. O’Keefe (1990) 222 Cal.App.3d 517, 522
[section 654 did not bar multiple punishments for burglaries of
several dormitory rooms in same building because “entry into
each room was separate and divisible conduct”].)
In our review of a sentencing claim under section 654
where the trial court made no explicit ruling as to the application
of section 654, “we infer that the court made the finding
appropriate to the sentence it imposed, [and] we must affirm the
sentence if an implied finding that section 654 does not apply is
supported by substantial evidence.” (People v. Mejia (2017) 9
Cal.App.5th 1036, 1045; People v. Tarris (2009) 180 Cal.App.4th
612, 626–627.)
12
B. Section 654 does not apply to appellant’s burglary
convictions
Appellant contends that because each of the three
burglaries in counts 1, 4 and 5 arose from an indivisible course of
conduct⎯a single entry into the parking garage⎯section 654
bars multiple punishments for the three offenses. To the
contrary, based on our determination that the judgment must be
modified by reducing the degree of the crimes in counts 4 and 5
from first to second degree burglary, it is clear that each burglary
arose from a separate unlawful entry. Section 654 thus has no
application to appellant’s sentence on counts 1, 4 and 5.
The evidence in this case established that appellant
committed three separate burglaries, not, as he contends, an
indivisible course of conduct based on a single entry into the
garage. He committed the first degree burglary charged in
count 1 when he unlawfully entered the parking garage of the
apartment building with the intent to commit a theft and broke
into Atkinson’s Chevy Camaro. He committed the second degree
burglary charged in count 4 when he unlawfully broke into
Brawner’s locked Mercedes Benz with the intent to steal. And
when he unlawfully broke into Adams’s locked Honda Civic in the
garage intending to commit a theft, he committed the second
degree burglary charged in count 5.
Each of these break-ins constituted separate and divisible
conduct: Each one was accompanied by a separate felonious
intent, and appellant had ample opportunity to reflect after the
first entry into the parking garage and after each entry into a
13
vehicle. The multiple punishment prohibition under section 654
does not apply to these facts.7
III. Appellant’s Conviction on Count 5 Is Supported
by Substantial Evidence
We reject appellant’s challenge to the sufficiency of the
evidence to support the conviction on count 5. Contrary to
appellant’s argument, substantial evidence established that
appellant committed second degree burglary in count 5 by
breaking into the locked Honda Civic with the intent to commit
theft.
As set forth above, appellant’s challenge requires us to
review the whole record in the light most favorable to the
judgment, presuming in its support every fact that a finder of fact
could reasonably deduce from the evidence. (People v. Flores
(2020) 9 Cal.5th 371, 411.) This standard applies regardless of
whether the prosecution relies on direct or circumstantial
evidence. (People v. Thompson (2010) 49 Cal.4th 79, 113.)
Indeed, “[e]ven where, as here, the evidence of guilt is largely
circumstantial, our task is not to resolve credibility issues or
evidentiary conflicts, nor is it to inquire whether the evidence
might ‘ “ ‘be reasonably reconciled with the defendant’s
innocence.’ ” ’ ” (People v. Gomez (2018) 6 Cal.5th 243, 278.)
7 We also reject appellant’s ineffective assistance of counsel
claim with respect to this issue. Because “[d]efense counsel does
not render ineffective assistance by declining to raise meritless
objections” (In re A.A. (2018) 30 Cal.App.5th 596, 600; People v.
Price (1991) 1 Cal.4th 324, 387), appellant’s trial counsel cannot
be deemed ineffective for failing to assert the meritless argument
that section 654 barred separate punishments for counts 1, 4
and 5.
14
Appellant’s challenge here focuses solely on the issue of
identity, as he claims that because he was not found in
possession of any property stolen from the Honda, the evidence
was insufficient to conclude he was the perpetrator. However,
the fact that appellant was not caught with any stolen property
from the Honda is not dispositive of the issue of the perpetrator’s
identity. Other circumstantial evidence presented established
the identity of the perpetrator, even if the stolen property was
never recovered. Indeed, “[o]ne may [be] liable for burglary upon
entry with the requisite intent to commit a felony or a theft
(whether felony or misdemeanor), regardless of whether the
felony or theft committed is different from that contemplated at
the time of entry, or whether any felony or theft actually is
committed.” (Montoya, supra, 7 Cal.4th at pp. 1041–1042.)
There was overwhelming evidence in this case that
appellant had burglarized the two other vehicles parked right
next to the Honda on the same night the Honda’s window was
broken and items from inside the car disappeared. At the time of
his arrest, appellant had Atkinson’s Louis Vuitton wallet from
the Chevy in his possession, and surveillance video from a Target
store showed appellant attempting to use credit or debit cards
stolen from the Chevy and the Mercedes within hours of the
burglaries. In addition, appellant was found with a device for
breaking car windows when he was arrested. On the strength of
this evidence it was reasonable for the jury to conclude that
because he had broken into the Chevy and the Mercedes with the
intent to steal on the same night and in the same location,
appellant had also broken into the Honda intending to commit a
theft.
15
The fact that this evidence may also be reconciled with
appellant’s theory that someone other than appellant may have
burglarized the Honda that night does not warrant reversal of
count 5. “ ‘Although it is the duty of the jury 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 jury, not the appellate court which
must be convinced of the defendant’s guilt beyond a reasonable
doubt. “ ‘If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.’ ” ’ ”
(People v. Stanley (1995) 10 Cal.4th 764, 792–793; People v.
Cravens (2012) 53 Cal.4th 500, 508 [“The conviction shall stand
‘unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction]” ’ ”].)
16
DISPOSITION
The judgment is modified to reduce appellant’s convictions
in counts 4 and 5 to second degree burglary and the matter is
remanded for resentencing. As modified, and in all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
17