P. v. Scott

Filed 3/27/07 P. v. Scott CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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In May 2005 a tenant of an apartment complex notified the assistant manager that he had seen someone looking over, and then jumping over, his neighbors fence. The assistant manager alerted other apartment complex personnel by radio and then went to the victims apartment. As he approached, he saw defendant Tony Eugene Scott in the upstairs window. The manager knocked on the apartment door and identified himself. Then he saw defendant leave the apartment through the patio door and jump over the patio fence. The manager and two other personnel chased defendant around the apartment complex. Ultimately, defendant stopped running and the employees held him until police arrived. The victim testified that she did not know defendant and did not give him permission to be inside her apartment. She acknowledged that nothing in the apartment had been taken or disturbed. The defense rested without presenting any evidence or testimony.

In case No. 05F03937, a jury convicted defendant of first degree burglary. (Pen. Code, 459, 460, subd. (a).) He was sentenced to state prison for four years, and awarded 60 days of custody credit and 30 days of conduct credit. The trial court imposed a restitution fine of $200 (Pen. Code, 1202.4, subd. (b)) and suspended an additional restitution fine in the same amount pending successful completion of parole (Pen. Code, 1202.45). The trial court further imposed a $10 crime prevention program fee (Pen. Code, 1202.5) with a $10 state penalty assessment (Pen. Code, 1464) and a $7 county penalty assessment (Gov. Code, 76000), a $20 court security fee (Pen. Code, 1465.8), and booking and classification fees.

In case No. 04F06528, the trial court found that defendant violated his probation by committing the offense in case No. 05F03937. He was sentenced to state prison for a concurrent term of one year; awarded 90 days of sentenced time, 60 days of custody credit, and 30 days of conduct credit; and ordered to pay a $200 restitution fine (Pen. Code, 1202.4) and a $200 restitution fine suspended unless parole is revoked (Pen. Code, 1202.45).

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief contending (1) there was insufficient evidence of the specific intent required for burglary, (2) the trial court erred by failing to instruct the jury on flight, and (3) his trial counsel rendered ineffective assistance. We consider these points in turn.

I

To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole. (Peoplev.Carpenter (1997) 15 Cal.4th 312, 387 (Carpenter), quoting People v.Johnson (1993) 6 Cal.4th 1, 38; see Jacksonv.Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560].)

To commit burglary, the underlying felony need be neither committed nor attempted; only the intent to commit the felony is required. [Citations.] The defendants intent to commit the crime must exist at the time of entering the building. [Citations.] (People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 166.)

While the existence of the specific intent charged at the time of entering a building is necessary to constitute burglary in order to sustain a conviction, this element is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence. [Citation.] (People v. Holt (1997) 15 Cal.4th 619, 669 (Holt).)

Defendant was observed looking over, and then jumping over, the victims fence; peering from a second story window in the victims apartment; and fleeing from the apartment after the manager knocked on the door. The victim did not know defendant and had not given him permission to enter. Under all of these circumstances, the jury could infer that defendant entered the victims apartment with the intent to commit larceny or a felony. ( 459; Holt, supra, 15 Cal.4th at p. 669.)

The jury was instructed that defendant could not be convicted unless the foregoing circumstances not only were consistent with the requisite specific intent but could not be reconciled with any other rational conclusion. No other rational conclusion appeared from the evidence.

Defendant retorts that he never intended to take anything from the victims apartment, and he had no need to Burglarize, because he was employed and his residence was fully furnished with everything [he] wanted. The argument fails, because the jury did not receive evidence of any of these matters. In any event, defendants unconsented entry into the apartment, followed by his suspicious conduct and then flight when confronted, implies that defendant intended to commit larceny or a felony but was interrupted before he could do so. Defendants conviction is supported by substantial evidence. (Carpenter, supra, 15 Cal.4th at p. 387.)

II

Defendant claims he would have been helped if his jury had been instructed on flight. However, the record shows that the jury was instructed with CALJIC No. 2.52 on flight. In fact, the prosecutor emphasized the flight instruction at the end of his closing summation.

Defendant claims he fled because he spotted six Hispanic males running toward him, as if they were looking to harm him. However, as he recognizes, no evidence of these Hispanics was presented at trial, because he chose not to testify.

Defendant claims evidence of the Hispanics could have been presented by the tenant who reported the crime, had he chosen to obey his subpoena and testify at trial. But the tenant did not appear or testify, and the present record does not reveal what he might have said. The trial courts judgment is presumed correct, and error must be affirmatively shown. (Peoplev.Brown (1988) 204 Cal.App.3d 1444, 1451.) Defendant has not shown that the tenants failure to appear resulted from any error made at trial.

III

Defendant claims his trial counsel rendered ineffective assistance in that he never told defendant or his family the severity of the burglary charge. Defendant claims that had he been properly advised, he might have accepted the prosecutors offer of 1 yr of County time. Because the present record sheds no light on how this offer was handled, or why trial counsel handled the offer in the manner being challenged, the claim of ineffective assistance is more appropriately asserted in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

IV

Our review of the record reveals a minor error in the calculation of presentence credit. Defendant was in custody from December 8, 2005, through sentencing on February 6, 2006, a period of 61 days. The extra day of custody credit does not require any additional conduct credit. We shall modify the judgment accordingly.

Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

In each case, the judgment is modified to award defendant 61 days of custody credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.

RAYE , J.

We concur:

SCOTLAND, P.J.

NICHOLSON , J.

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