P. v. McKenzie

Filed 5/3/06 P. v. McKenzie CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Israel Noel McKenzie was sentenced to 30 years to life after a jury found him guilty of burglarizing a home by entering and stealing a purse from a dining room table. On appeal his primary contentions are that the evidence is insufficient to establish his entry into the home and that the sentence constitutes cruel and unusual punishment. We are constrained by binding authority to affirm the judgment with one modification as to which respondent concedes that the trial court erred.

Background

Evelyn Johnston, aged 82, testified that she lives alone in Saratoga where she owns a number of rental properties. She knew defendant because he lived in one of her rentals with a female tenant. Ms. Johnston had spoken to defendant twice before the incident at issue here. On one of these occasions defendant knocked on Ms. Johnston's door and asked to borrow $20. She felt pressured to lend him the money, but did not have $20 in cash so offered to take him to the bank to get it. At his insistence, she drove with him to the bank, cashed a $20 check, gave him the proceeds, and dropped him off at a bus station. He gave her an I.O.U. which was later redeemed by the tenant with whom he lived.

On March 2, 2004, Ms. Johnston went shopping, arriving home around 12:30 p.m. She went into the kitchen to cook, leaving the front door open, the screen door ajar, and her purse on the dining room table, where it could easily be seen from the front door. While in the kitchen, she heard no sounds of entry; but although her hearing is good, she had a blower going. After an hour or an hour and a half in the kitchen, she became concerned about the fact that she had left the door open and her purse close to it. She went into the dining room and found the purse gone. She searched the rest of the house to no avail. In the purse were keys, some notes to herself, some credit and ATM cards, eight to 10 dollars in cash, and two checkbooks, one from Bank of America and one from Wells Fargo Bank. About 1:55 p.m. she called 911.

Arleigh Ochinero testified that around 3:00 p.m. on March 2, 2004, he went to the Bank of America in Saratoga to use the ATM. He was approached by defendant, who asked him to cash a check for defendant's grandmother. Mr. Ochinero saw the name â€