P. v. Farlough

Filed 7/17/07 P. v. Farlough CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Burt Pines, Judge. Affirmed.

Jeffrey S. Dross, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Dexter Samuel Farlough appeals the judgment entered following his conviction by jury of first degree burglary and inflicting corporal injury upon a spouse or cohabitant. (Pen. Code, 459, 273.5, subd. (a).) The trial court sentenced Farlough to a prison term of four years. We reject Farloughs claim the evidence was insufficient to support his conviction of burglary and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The prosecutions evidence.

On February 24, 2004, Linda Endless and Farlough were married and had a three and a half-year old child, Samantha. Although they were separated, Farlough, a long distance truck driver, had been staying with Endless at her home in Arleta for about 10 days. Farlough and Endless left the home separately on the morning of February 24, 2004. During the day, Farlough and Endless spoke by telephone. In one of these conversations, Endless told Farlough that Samantha had lost bunny ears Farlough had purchased for the child. Farlough became upset at this news and indicated Endless should not have permitted this to happen. In response, Endless apparently told Farlough to remove his belongings from her home. When Endless returned home, she placed Farloughs property, consisting of clothing and some movies, outside the door. When Farlough arrived, he banged on the window and door. Farlough said, What do you think I am? Homeless? When Endless came to the door, she handed Farlough his telephone.

Farlough pushed past Endless and threw some papers at her, broke the antenna of her television and took a VCR that he had given Endless and other movies that belonged to him. Farlough said he was taking Samanthas bicycles because Endless was a tramp and a bitch. When Farlough removed the bicycles from the home, Endless locked the door and made verbal comments to Farlough through the door. This caused Farlough to become even angrier. Farlough broke the door down, entered the residence and began to strike Endless repeatedly with a closed fist. Endless recalled at least 10 blows to her head and she became so frightened that she urinated. Farlough told Endless she better move. Endless called 911 and police officers arrived while Farlough remained at the scene.

Los Angeles Police Officer Robert Bean found Farlough outside Endlesss residence with a taxi driver and various items of miscellaneous property. Although it was a cool February evening, Farlough was sweating. The front door of Endlesss residence appeared to have been recently kicked open.

Los Angeles Police Officer Emily Tomlin observed and photographed the injuries Endless sustained in the attack, which included redness below her left eye, swelling of her lip and an injury to her right hand.

2. Defense evidence.

Julia Allen testified Endless does not have a good reputation in the community for truthfulness and honesty.

Farlough testified in his own defense. He claimed that in February of 2004, he and Endless were discussing whether Farlough would start to pay rent or get a key to Endlesss residence. After they left Endlesss home on the morning of February 24, 2004, Farlough and Endless saw each other later in the day on Ventura Boulevard. Farlough purchased a pair of pants for Samantha and gave Endless between $80 and $100. At approximately 5:00 p.m., Endless telephoned Farlough and reported Samantha had lost bunny ears Farlough had purchased for her. Endless said she blamed herself because she was on psychiatric medication. Farlough said he could not deal with Endless any longer and indicated he was going to remove his belongings from her home and then Im gone.

Farlough arrived at Endlesss home at approximately 6:30 p.m. and saw his belongings sitting outside the residence. When Farlough tapped on the window, Endless opened the door to hand Farlough his telephone and money. However, Endless shut the door before Farlough could get the money, so he knocked on the door again. Farlough testified that when Endless opened the door to hand him the money, Farlough stepped inside because it appeared Endless was inviting him into the residence. Farlough entered and served Endless with papers in a civil lawsuit. Endless then tried to push Farlough out the door and a struggle ensued after which Farlough found himself outside the residence with his VCR and Samanthas bicycles. Farlough claimed they previously had agreed he would put the bicycles into storage because Endless was going to move on March 1. Endless stated Farlough was not going to sue her and attacked him.

Farlough denied that he physically broke down the door but admitted he pushed on the door while Endless was trying to lock it. Farlough claimed he did so only to extract his jacket from the door. Farlough testified Endless never denied him permission to enter the house.

3. The relevant instructions to the jury.

The trial court instructed the jury on the elements of burglary and instructed the jury that, although the People had presented evidence of more than one act that might support a conviction of burglary, the jury had to agree unanimously on the acts committed by Farlough that supported his conviction.^[1]

CONTENTION

Farlough contends the conviction of burglary must be reversed because the evidence was insufficient to prove he intended to commit either theft or felony spousal abuse when he entered Endlesss home.

DISCUSSION

Penal Code section 459, as relevant here, provides a defendant is guilty of burglary if he or she enters a house with the intent to commit grand or petit larceny or any felony. (People v. Montoya (1994) 7 Cal.4th 1027, 1041.) The prosecution must establish the defendant harbored the intent to commit the theft or another felony at the time of the entry. (People v. Waidla (2000) 22 Cal.4th 690, 734.) The intent required for burglary is usually inferred from all the facts and circumstances surrounding the crime. (People v. Lewis (2001) 25 Cal.4th 610, 613; People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.) In order to prove theft, the People must demonstrate a specific intent to permanently deprive the individual in possession of the property. (People v. Avery (2002) 27 Cal.4th 49, 54.)

In arguing the evidence does not support his burglary conviction, Farlough asserts Endless testified she argued with Farlough after he entered the house and served legal papers on her. Farlough notes Endless testified they had not previously argued about Samanthas bicycles. Farlough concludes the evidence therefore demonstrates he formed the intent to take the VCR and the bicycles only after he entered the residence.

Regarding the second entrance, Farlough claims he pushed the door open only to free his jacket. Thus, although Farlough may have used force to enter the home, there was insufficient evidence that he did so with the intent to inflict corporal injury. Farlough concludes the conviction of burglary must be reversed.

Farloughs arguments are not persuasive. With respect to the first entry, the jury reasonably could conclude that, by placing Farloughs property outside her home, Endless intended to inform Farlough he no longer was welcome in the residence. Consistent with this view, when Farlough knocked at her door, Endless opened it only enough to hand Farlough his telephone and some money. However, Farlough pushed past her, entered the residence and took Endlesss VCR and two bicycles. The jury reasonably could find Farlough intended to deprive Endless permanently of this property when he entered the residence because Farlough was angry at Endless not only for losing Samanthas bunny ears but also for leaving his property outside the residence.

The circumstances surrounding Farloughs second entry into the residence also are sufficient to support the conviction of first degree burglary. Although Farlough testified he pushed on the door only to free his jacket, the jury reasonably could reject this testimony in favor of Endlesss testimony that Farlough became enraged after Endless locked him out of the house and made comments to Farlough through the locked door. In immediate response to Endlesss remarks, Farlough forcibly kicked the door in and attacked her, beating her with his closed fist and causing her such fear that she spontaneously urinated. Endlesss testimony was corroborated by the police officers who observed Endlesss injuries and the recent damage to Endlesss door and found Farlough sweating on a cool February evening. Based on this evidence, the jury reasonably could conclude Farlough entered the residence on the second occasion with the intent to commit felony spousal abuse and thus was guilty of first degree burglary.

Because the facts of either the first or the second entry into Endlesss home were sufficient to support the conviction of burglary, Farloughs claim of error must be rejected on appeal. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Johnson (1980) 26 Cal.3d 557, 577-578.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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^[1] The trial court instructed the jury as follows: The People have presented evidence of more than one act to prove that the defendant committed [burglary charged in count one]. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed.