P. v. Rodgers

Filed 8/14/07 P. v. Rodgers CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Thomas H. Cahraman, Judge. Affirmed with directions.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

After a jury trial, defendant was found guilty of first degree residential burglary. (Pen. Code 459.)^[1] The jury also found that during the commission of the burglary, another person, other than an accomplice, was present in the residence. ( 667.5, subd. (c)(21).) Defendant was sentenced to two years in state prison. On appeal, defendant contends his conviction for first degree burglary must be reversed because there is insufficient evidence to support a finding that the structure he entered was an inhabited dwelling, due to the evidence that the victim was in the process of moving out of the home at the time of the burglary.

FACTS

The victim testified that on September 11, 2005, he was in the process of moving out of his current home when defendant jumped over the fence into his backyard. Defendant entered the victims home though an unlocked patio door. The victim was in the home at the time and observed defendant gather several of his possessions, including baseball caps, a watch, and jewelry. Defendant left the home with the victims possessions. The victim went outside and questioned defendant in the driveway, but did not attempt to stop him. Two of the victims friends and the victims son were in the driveway of the home as the incident took place.

While in the process of moving, the victim stayed at his current home and used it as his primary residence. Prior to the burglary, the victim had never stayed overnight at his new home. The victim testified that he had intended on staying at his current home overnight on September 11, 2005.

At the time of the burglary, the victim had already moved his refrigerator, stove, bed frame, some dresser drawers, and books out of his current home. At the same time, because he had planned to stay at the home overnight, he still had a mattress in the living room, as well as clothing, a television, and important personal papers. However, as a result of the burglary, the victim decided to never again stay overnight in his current residence, because after the incident with defendant, the victim was pretty shaken up.

The victim finished moving most of his possessions out of the home within a few days after the incident with defendant. However, it took many weeks before the victim formally moved out of his home, due to the need to sort through his documents and prepare the residence for renting.

At the trial, defendant testified that he was on the victims property on September 11, 2005, but did not enter his home. Defendant stated he was running through peoples backyards trying to flee a fight. Defendant saw the victim in the driveway of the home and heard him say a phrase such as Hey, stop, but he continued to run.

A jury found defendant guilty of violating section 459, residential burglary, and fixed the offense in the first degree. The jury also found that during the commission of the burglary, another person, other than an accomplice, was present in the residence. ( 667.5, subd. (c)(21).) Defendant was sentenced to two years in state prison.

DISCUSSION

Defendant contends there is insufficient evidence to prove the victims home met the criteria for an inhabited dwelling, due to the evidence that the victim was in the process of moving out of his home at the time of the burglary.

In reviewing a claim that insufficient evidence supports a criminal conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidencethat is, evidence which is reasonable, credible, and of solid value from which a jury comprised of reasonable persons could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) We presume in support of the judgment the existence of every fact the [jury] could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) If two conflicting inferences may be drawn from the evidence, we must resolve the conflict in favor of the trial courts ruling. (People v. Harvey (1984) 151 Cal.App.3d 660, 667.)

The factors to consider in determining whether a dwelling is inhabited are as follows: (1) possessions remaining in the home; (2) the victims intent to occupy the home again, especially for the purpose of sleeping; (3) continual use of the home; and (4) the utilities remaining active. (See, e.g., People v. Jackson (1992) 6 Cal.App.4th 1185, 1188-1189; People v. Hughes (2002) 27 Cal.4th 287, 355.)

We find substantial evidence supports the trier of facts finding that the victims home was an inhabited dwelling at the time of the burglary. The victim testified that he intended to stay overnight in his current home, which is supported by testimony that he kept a mattress, clothing, a television, and important personal documents at the home. Furthermore, the victim was present in the home at the time of the burglary; and a rational trier of fact could deduce that the utilities were still active, since the victim intended to stay in the home overnight and planned to work on the home to prepare it for renting. The foregoing facts provide substantial evidence to support the trier of facts finding that the victims home was an inhabited dwelling at the time of the offense.

Defendant notes that the prosecution did not present any witnesses to corroborate the victims testimony that (1) he intended to stay at his current home overnight; or (2) that there was property remaining in the home on the day of the robbery. While defendant is correct that the prosecution only presented the victims testimony, it is well established that the uncorroborated testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to sustain a criminal conviction. (Evid. Code, 411; People v. Scott (1978) 21 Cal.3d 284, 296.) We find no reason to conclude that the victims testimony that he planned to stay overnight at his current home or the description he provided of the property remaining in the home would be impossible or inherently improbable. Furthermore, the jury was given Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 226 (modified), which instructed them on the criteria to be used in determining the believability of a witness. Thus, the jury was fully able to evaluate the credibility of the victim.

Defendant distinguishes his case from People v. Hughes, supra, 27 Cal.4th 287, where the court found sufficient evidence to support the finding that the victims apartment was an inhabited dwelling. In Hughes, the victim was moving out of her apartment and had been sleeping at her new residence for two weeks when the defendant entered her current apartment as she was inside cleaning. (Id. at p. 354.) The victim had already moved most of her clothing, but all of her furnishings remained in her current residence. (Ibid.) The court found that the evidence did not establish that the victim intended the day of the burglary to be her last day in the apartment. (Id. at p. 355.)

Defendant argues that the victim in the instant case had already moved most of his furnishings out of the home, thereby implying that the home was no longer inhabited. We find defendants focus on the quantity of furnishings remaining in the victims home at the time of the burglary to be unpersuasive. The victims testimony that he planned to stay in the home overnight, combined with the mattress, television, and clothing remaining in the home are substantial proof that he was planning to sleep at the home, despite the fact that many of his furnishings had been moved to his new residence.

Next, defendant contends his case differs from People v. Jackson, supra, 6 Cal.App.4th 1185, where the court concluded the evidence supported a finding that the home was an inhabited dwelling. In Jackson, the victim was robbed while in the bedroom of an acquaintance that was in the process of movingthe acquaintance was one of the people that robbed the victim. (Id. at pp. 1187-1188.) The acquaintance rented the home with other individuals that were not moving, but most of the property in the acquaintances bedroom had been moved to a vehicle prior to the robbery. The defendants argued that there was insufficient evidence to prove the acquaintance intended to use the bedroom again for habitation, since most of his property had been removed. (Ibid.) However, the court disagreed, finding the acquaintance had never vacated, presumably because he was still in the home at the time of the robbery and his possessions were in the car. (Id. at p. 1189.) The court also noted that the other bedrooms in the home remained in use and, therefore, the home was inhabited despite the status of the bedroom at issue in the case. (Ibid.)

Defendant distinguishes his case from Jackson by stressing the fact that the victim was the sole occupant of his current home and that it remained vacant for one to three months after the victim formally moved out. We find defendants comparison to Jackson unconvincing. If anything, the instant case has stronger evidence than Jackson. Although the victim was the sole occupant of his current home, he had stated his intent to sleep in the home the night of the burglary; a similar statement of intent was lacking in the Jackson case. Furthermore, the victim in the instant case had some of his possessions in a van parked in the driveway of his home, which is strikingly similar to the facts of Jackson. In addition, the victim was at home when defendant entered his home, indicating that he had not yet vacated the premises, which is again analogous to the facts of Jackson. Therefore, we find the reasoning in Jackson supports the conclusion that the victims home was an inhabited dwelling at the time of defendants entry.

DISPOSITION

On our own motion, we direct the superior court clerk to correct the abstract of judgment to reflect that a jury found defendant violated section 667.5, subdivision (c)(21). (Cal. Rules of Court, rule 8.155(c)(1).) The superior court clerk shall forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

MILLER

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.