P. v. Crawford
Filed 6/18/13 P. v. Crawford CA2/2
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHNNIE BERNARD CRAWFORD,
Defendant and Appellant.
B238023
(Los Angeles
County
Super. Ct.
No. SA075521)
APPEAL from
a judgment of the Superior Court
of
County. Elden S. Fox,
Judge. Affirmed as modified.
Alan S.
Yockelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, James William Bilderback II, and Alene M. Games, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________
In an information filed by the Los
Angeles District Attorney, defendant and appellant Johnnie Bernard Crawford was
charged with second degree commercial
burglary (count I; Pen. Code, § 459),
subd. (a)). As to both counts, it was
alleged that appellant’s sentence could be enhanced pursuant to section 667.5,
subdivision (b). Appellant pleaded not
guilty and denied the allegations.
Trial was by jury. The jury found appellant guilty on both
counts as charged. He admitted five
prior conviction allegations.
Probation was
denied. Appellant was sentenced to
424 days of actual custody, plus 424 days of conduct credit, for a total credit
of 848 days. The trial court ordered him
to pay a $800 restitution fine pursuant to section 1202.4, subdivision (b), $80
in court security fees pursuant to section 1465.8, and $60 in criminal
conviction assessments pursuant to Government Code section 70373. The trial court awarded $1,752.95 in direct
restitution to the victim. It imposed
and stayed a $800 parole revocation fine pursuant to section 1202.45.
Appellant
timely filed a notice of appeal. On appeal, appellant argues: (1) Insufficient evidence supports
appellant’s conviction because (a) the courtyard does not constitute a building
for purposes of the burglary statute (§ 459), and (b) even if the courtyard is
a building, there was insufficient evidence of entry for purposes of burglary;
(2) The trial court abused its
discretion and denied appellant his right
to due process and a fair trial by admitting, under Evidence Code section
1101, subdivision (b), testimony regarding two prior burglaries to prove
intent; and (3) The trial court erred in
failing to stay the sentence on appellant’s vandalism conviction when he had
been sentenced for commercial burglary.
We
agree with the parties that appellant’s punishment on count II (vandalism)
should have been stayed pursuant to section 654 because it was part of the same
course of conduct and had the same objective as the burglary in count I. Therefore, we correct the sentence. Upon remand, we direct the trial court to
modify the abstract of judgment to stay the sentence as to count II. In all other respects, the judgment is
affirmed.
Prosecution
Evidence
A. Current
Burglary
In September 2010, David
Knowlton (Knowlton) lived in a residence at 9004 Rosewood, in West Hollywood,
which sat behind a small business compound located at 9009 Beverly
Boulevard. The commercial building was
two stories high and housed four businesses, including a hair studio, an art supplies
store and studio, and an antique store.
A 15-foot wall was attached to the building and surrounded the compound,
with a locked eight-foot gate at the front and in the back of the
compound. The businesses shared a
patio/courtyard.
On September 25, 2010, at
around 3:00 a.m., Knowlton woke up to the sound of repeated banging on what he
thought was a dumpster. Fifteen to 20
minutes later, he heard a “creaking†sound like nails being pulled from
wood. He looked out his window and down
the driveway, but he did not see anyone.
He continued to hear banging and the sound of plaster being hit with
something heavy.
Suddenly, Knowlton saw a
man wearing a Fedora hat and dark clothes walk “briskly†by the window. Knowlton continued to hear the banging sound,
so he called 911. The banging continued
until sheriff deputies arrived.
When Knowlton heard the
deputies’ voices, he saw one man run down the driveway away from the
deputies. The other man, with the
Fedora, ran “into the arms of the police.â€
Los Angeles County
Sheriff Deputies Michael Egan and Kevin Tiwari responded to a dispatch of a
possible burglary in progress at 9009 Beverly Boulevard. They received information that two men were
trying to break in at the back of the location.
They saw appellant walking in their direction, wearing dark
clothing. Appellant dropped a “bundle of
items†on the ground. He was sweating
profusely and breathing heavily.
Deputy Egan asked
appellant where he was coming from. He
replied, “The door was open and I was just checking the lock.†Appellant was handcuffed and placed in a
patrol car. Deputy Egan retrieved the
items that appellant had dropped on the ground.
He found a pair of dark gloves, a hat, and a dark shirt. The deputies drove around looking for the
second suspect, but did not find anyone.
Deputies Christopher
Bromiley and Randall Slate responded to the scene to assist in perimeter
containment. They found a crowbar in a
patch of ivy or shrubbery near the driveway.
They observed extensive damage to a metal gate at the back of the
compound. Deputy Slate found a deadbolt
lock on the ground, inside of the compound.
There were stucco and concrete pieces on the ground. Deputy Slate also saw a 24-inch metal plate
that had been pried off the wall and placed against a planter 10 feet
away. Both deputies noticed that
appellant had stucco dust on his shoes.
A deputy took Knowlton
for an in-field show up. Knowlton said
that appellant looked “quite a bit†like the burglar, with the same general
build and “lighter dark skin.â€
While appellant was being
booked, Deputy Bromiley found a car key in appellant’s possession. The deputy returned to the scene and found a
Jeep Chrysler parked nearby. Appellant
was the registered owner. While
performing an inventory search of the vehicle, Deputy Bromiley found a bag
containing tools in the cargo area, including a hacksaw with an additional
blade and a screwdriver.
The building owner made
over $1,700 in repairs to the building, gate, and lock.
B. Prior Burglaries
1. 1998
Burglary
On June 17, 1998, Beverly
Hills Police Officers Charles Yang and Jeffrey Gelfman responded to a burglary
alarm at a commercial building located at 8820 Wilshire Boulevard in Beverly
Hills. They went to the rear of the
building, off an alley, and found that the “push bars†on the lobby door had
been pried and broken. The lobby
provided access to most of the offices in the building, including Farsh
International, a rug retail business.
The officers found a
two-by-three foot hole in the drywall at the base of the wall, by the rug business. The officers also noticed some car keys and a
Ralph’s Club card near the base of the hole.
They called for backup.
Officer George Elwell
also responded to the scene and observed the damage to the rear lobby
doors. He noticed some pry marks on a
storage room door, right off the lobby.
Inside the room, someone had attempted to tunnel into the next room, but
abandoned the project after hitting concrete and large wooden studs.
Officer Elwell obtained
information based on the Ralph’s Club card left at the scene and obtained a
search warrant for appellant’s apartment and vehicle. Inside the apartment, officers found a
matching Ralph’s Club card on the coffee table in the living room. Officers also found a credit card in
appellant’s name. On a balcony inside
the apartment, officers found two oriental rugs and an encyclopedia of antiques
and rugs. Officers found a large crowbar
in the trunk of appellant’s vehicle, along with drywall plaster dust and a
hammer, also covered in plaster dust.
2. 1993 Burglary
On
August 16, 1993, at around 1:00 a.m., Los Angeles Police Officers Michael
Rossello and Robert Humphries responded to a burglary alarm at a strip mall at
19319 Ventura Boulevard in Los Angeles.
They parked in a back alley and took a walkway to the front of the
businesses, which contained, inter alia, a tobacco shop and a computer
store. The first business next to the
walkway was vacant, but officers could see that the door had been pried open. By looking in the windows, they could see
appellant exiting a tunnel from the tobacco shop next door to the vacant store.
Appellant
ran through the front door, past the officers, towards the parking lot. The officers yelled for him to stop, but
appellant threw a four-foot crowbar at them, which landed at Officer Rossello’s
feet. Officer Rossello pursued appellant
on foot, while Officer Humphries returned to the patrol car. Appellant ran down an embankment and tried to
hide. Officer Rossello ordered appellant
to stop and fired a warning shot into the ground. Appellant surrendered. He was sweaty, breathing heavily, and had
drywall residue on his clothes and in his hair.
The officers retrieved the crowbar, a pair of gloves, and a
walkie-talkie from the embankment where appellant was arrested. Officers also discovered that not only had
appellant tunneled from the vacant store to the tobacco shop, but he had also
tunneled from the tobacco shop to the computer store next door.
Defense
Evidence
Los Angeles Sheriff
Deputy Gregory Taylor brought the clothes appellant was wearing the night of
the instant robbery to court. At that
time, there was no white dust on those clothes.
DISCUSSION
I. Appellant’s
conviction is affirmed
Appellant argues that the
because (1) the area appellant attempted to enter does not constitute a
“building†for purposes of the burglary statute (§ 459); and (2) there was
insufficient evidence of entry.
A. Proceedings below
At
the close of the prosecutor’s case-in-chief, defense counsel made a motion
under section 1118.1 to dismiss the charges.
Counsel argued that the structure was not a “building†because it had no
roof over the courtyard. Furthermore,
even if the structure was a building, there was no evidence that appellant made
entry onto the premises. In response,
the prosecutor argued that the structure containing the four businesses was
attached by four walls and a roof and was designed to contain people or shelter
property. It did not matter whether the
courtyard was covered.
The
trial court denied defense counsel’s motion, reasoning: “There is clearly an issue that was raised by
counsel because there is an open courtyard, apparently, inside the security
gate; however, all of the other structures in or around apparently do contain
the common law description of four walls and a roof, and from my review of case
law which goes back at least to 1963, it appears that the common law
descriptive purpose of the curtilage and/or the area immediately within even
for commercial burglary qualifies when it is accessed in an area that would not
otherwise be open to the public, for instance, a porch or some other area which
anyone could access to gain entry into what was described as a courtyard or the
interior of this particular commercial building would require either someone
to, apparently, climb a roof and then jump down an area which was described as
probably 12 to 14 feet and/or attempt access through a security gate as
described and shown with a very small space at the top in which a person would
not be able to squeeze through, therefore requiring someone to either
unlawfully break, damage or alter that condition and/or as described climb onto
the roof and then jump down into the area.
“The
Court believes that at least the factual description and the evidence as
presented does warrant the trier of fact having the opportunity to make that
determination, and as a matter of law the court does not deem the structure to
be one which could not be burglarized unless the interior businesses were also
either broken into or entered.â€
Regarding
entry, the trial court also found that this was an issue for the jury to
decide. The trial court stated: “Well, it’s her testimony that none of the
interior businesses were damaged; however, it’s clear the gate was broken. The lock was apparently removed and lying
inside of the area where the security gate would be.
“You
know, the issue in this case in the Court’s mind is the issue of intent. Why would the person, assuming it’s your
client, based on the evidence in this matter[,] want to remove a gate and
remove a lock other than to commit a theft inside? [¶]
That’s the argument that counsel would have to make in this case
assuming [appellant] is connected by way of his presence and other
circumstances with the damage that was apparent at the time that the sheriff’s
department arrived.â€
B. The courtyard is a “buildingâ€
Burglary requires proof
of entry into certain structures with the intent to commit larceny or any felony. (People
v. Tafoya (2007) 42 Cal.4th 147, 170; § 459 [“Every person who enters any
house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable,
outhouse or other building . . . , with intent to commit grand
or petit larceny or any felony is guilty of burglaryâ€].)
Here, there is ample
evidence showing that appellant committed burglary. He was practically caught red-handed. He was walking away from the scene as
deputies arrived. In front of the
deputies, he dropped a pair of dark gloves, a dark shirt, and a hat similar to
the witness’s description of the man he saw.
He had plaster dust on his shoes when he was apprehended. He had burglary tools in his vehicle, which
was parked close to the scene, and his crowbar was found near the driveway.
Appellant does not
dispute the foregoing evidence. Instead,
he argues that the courtyard is not a “building†within the meaning of section
459. We are not convinced.
“It has long been the
rule that a ‘building’ within the meaning of California’s burglary statute ‘is
any structure which has walls on all sides and is covered by a roof.’ [Citations.]
The walls can take various forms and need not reach the roof [citation],
but they must ‘act as a significant barrier to entrance without cutting or breaking.’ [Citation.]
‘The proper question is whether the nature of a structure’s composition
is such that a reasonable person would expect some protection from unauthorized
intrusions.’ [Citation.]†(In re
Amber S. (1995) 33 Cal.App.4th 185, 187; see also People v. Valencia (2002) 28 Cal.4th 1, 11, overruled in part on
other grounds in People v. Yarbrough
(2012) 54 Cal.4th 889, 894.)
Here, the courtyard was
an integral part or functional part of the building. (People
v. Chavez (2012) 205 Cal.App.4th 1274, 1282.) The businesses were encompassed by a 15-foot
wall, where the only entry was through the eight-foot gates at the front and
rear of the compound, which were locked to protect against thieves.
points to the building and as a significant barrier to entrance, as shown by
appellant’s use of a crowbar to break in that night.
People v. Chavez, supra,
205 Cal.App.4th 1274 is distinguishable.
In that case, the court found that an uncovered fenced wrecking yard was
not a building or appurtenance of a building within the meaning of section 459,
even though there was a building in the yard and one side of the building’s
wall formed one side of the fenced area.
(People v. Chavez,
gate were integral parts of the compound.
C. Ample evidence of entry
When
a challenge is made to the sufficiency of the evidence, the reviewing court
views the evidence in the light most favorable to the judgment. (People
v. Moore (2011) 51 Cal.4th 386, 408.)
“[A]n entry occurs for
purposes of the burglary statute if any part of the intruder’s body, or a tool
or instrument wielded by the intruder, is ‘inside the premises.’ [Citations.]â€
(People v. Wise (1994) 25
Cal.App.4th 339, 345.) Even the
slightest entry is sufficient. (
Cal.4th 270, 273–274.) In other words,
“something that is outside must go
at p. 279.)
Here, the building owner
testified that the locked gate provided access to the four business suites,
through the shared courtyard. A metal
plate was installed in the stucco doorjamb so that an assailant could not reach
the lock. The broken lock was found
inside the gate to the compound. The jury
could infer from this evidence that some part of appellant’s body, or some
instrument he was using, entered the compound and resulted in the damaged lock
being found inside the gate and courtyard.
II.
in admitting evidence of two prior burglary offenses
A. Background
Prior to trial, the prosecutor
brought a motion to admit some of appellant’s prior burglary convictions
burglary charge. Later, the trial court
asked the prosecutor about the specifics of the proffered testimony regarding
each prior burglary. The prosecutor
stated that crowbars were involved in nearly all of the prior burglaries and
rugs seemed to be one of the primary targets.
Defense counsel stated that intent was not an issue in this case;
appellant only claimed that he was not the burglar. Therefore, defense counsel argued that the
prior acts were inadmissible because intent was not a material element at issue.
The trial court allowed the
prosecutor to introduce facts of two admitted priors. It ruled as follows: “In regard to this matter, the Court is aware
that the similarity issues certainly rise to a rather distinct level on the
issue of I.D. [¶] The jury in this case, if and when the People
offer such evidence particularly as to act one and act two, are going to be
instructed that they may consider the conduct only on the issue of intent, not
on the issue of identity or for any other purpose.â€
Thereafter, the trial court
instructed the jury that the prior burglaries were introduced for the limited
purpose of determining appellant’s intent.
The evidence could not be considered to show appellant’s bad character
or disposition to commit crimes.
B. Discussion
Evidence Code section 1101,
subdivision (a), provides, in relevant part:
“[E]vidence of a person’s character or a trait of his or her character
. . . is inadmissible when offered to prove his or her conduct
on a specified occasion.†(Evid. Code, §
1101, subd. (a).) But, subdivision (b)
permits the admission of evidence that a person committed a crime or other act
when it is relevant to prove some fact, such as intent. (Evid. Code, § 1101, subd. (b).) The admissibility of other crimes evidence
depends on (1) the materiality of the facts sought to be proved, (2) the
tendency of the uncharged crimes to prove those facts, and (3) the existence of
any rule or policy requiring the exclusion of the evidence. (People
v. Carpenter (1997) 15 Cal.4th 312, 378, 379, overruled by statute on other
grounds as discussed in Verdin v.
Superior Court (2008) 43 Cal.4th 1096, 1106–1107.) For the tendency of prior acts to prove the
disputed facts, only the least degree of similarity is needed to prove
intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402, superseded by statute
on other grounds as discussed in People
v. Britt (2002) 104 Cal.App.4th 500, 505.)
“A trial court’s ruling admitting
evidence of other crimes is reviewable for abuse of discretion.†(People
v. Hayes (1990) 52 Cal.3d 577, 617.)
Here, the trial court did not abuse
its discretion in admitting evidence of two of appellant’s prior acts. The evidence of the prior burglaries was
relevant to appellant’s intent. He was caught
walking away from the scene, and told the police that he was just checking the
lock on the gate. Therefore, his intent
to commit a burglary was in dispute.
Appellant contends that the
presently charged offense was “decidedly dissimilar†from the past
offenses. We disagree. Both the prior offenses and the current
offenses were commercial burglaries.
And, a crowbar was present at all three crimes.
We likewise are not convinced by
appellant’s claim that evidence of his past burglaries was inadmissible under
Evidence Code section 352.
name="_ftnref4" title="">[4] As set forth above, the prior burglary evidence
was probative to demonstrate appellant’s intent. While five law enforcement officers may have
testified, that does not mean that their testimony was time-consuming or
confusing.
Moreover, we reject any suggestion
that the jury did not follow the trial court’s instruction regarding
consideration of this evidence. (
331 [we presume that the jury understood and followed the trial court’s
instruction].)
In any event, even if the trial
court had erred in admitting this evidence, the evidence was harmless in light
of the other evidence supporting the verdict.
(People v. Earp (1999) 20
Cal.4th 826, 878.) The evidence against
appellant was overwhelming. He was
walking away from the scene. He dropped
his hat and dark gloves and shirt, all of which were recovered by the
deputies. His crowbar was retrieved by
the driveway. He had what appeared to be
stucco dust on his shoes. And, burglary
tools were found in his vehicle, parked near the scene.
Finally, we note that there is no
possibility that the admission of this evidence deprived appellant of
of evidence do not rise to the level of a federal constitutional question
unless the evidence is “so prejudicial as to render the defendant’s trial
fundamentally unfair.†(
903, 913.) As discussed above, the trial
court did not err in admitting this evidence.
And, even if the trial court did err, the evidence was so overwhelming
that any error was harmless beyond a reasonable doubt. Thus, there were no constitutional
violations.
III.
Appellant
claims that his punishment on count II, vandalism, should have been stayed
pursuant to section 654 because it was part of the same course of conduct and
had the same objective as the burglary in count I. The People concede.
We
agree. There was no evidence presented
that appellant damaged the lock and gate for any reason other than to commit
burglary. Since there was no showing
that appellant had separate intents or objectives, the trial court improperly
imposed a concurrent sentence as to count II.
(§ 654; People v. Britt (2004)
32 Cal.4th 944, 951–952; People v. Alford
(2010) 180 Cal.App.4th 1463, 1469.) We
correct the sentence to stay the punishment as to count II. The trial court is instructed to amend the
abstract of judgment to reflect this modification.
The
judgment is affirmed as modified. The
matter is remanded to the trial court with directions to stay the punishment
imposed on count II. The abstract of
judgment shall be amended accordingly.
In all other respects, the judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
_____________________,
J.
ASHMANN-GERST
We concur:
_____________________, P. J.
BOREN
_____________________, J.
CHAVEZ
further statutory references are to the Penal Code unless otherwise indicated.
appellant’s counsel’s request during oral argument, we reviewed all of the
trial exhibits, including photographs of property and the gates.