P. v. Torres

Filed 8/15/07 P. v. Torres CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.

William A. Malloy, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant, Sandra Marie Torres, was found guilty after a jury trial on June 1, 2006, of first degree burglary (Pen. Code,  459).^[1] In a bifurcated proceeding, the trial court found true allegations that Torres had a qualifying prior prison term within the meaning of section 667.5, subdivision (b), a prior serious felony conviction within the meaning of section 667, subdivision (a), and a prior serious felony conviction within the meaning of the three strikes law ( 1170.12, subd. (c)(1)).

The trial court sentenced Torres to the midterm of four years which was doubled to eight years pursuant to the three strikes law. The court imposed a consecutive term of five years for the prior serious felony conviction enhancement and stayed Torress sentence for the prior prison term enhancement.^[2] The court imposed a restitution fine and granted Torres applicable custody credits.

Torress appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Torres was advised she could file her own brief with this court. On February 26, 2007, we invited Torres to submit a letter stating any grounds on appeal she wished this court to consider.

Torres responded with a letter challenging the authentication of property stolen during the burglary. She questions whether any witness saw her come out the front door of the victims residence. Torres asks us to review whether there was animosity between her family and the victims family. Torres also requests that we review her mental health and whether she was taking medications for a mental illness.

FACTS

Deanna Rowan lived on North Irma Street in Visalia. On February 20, 2006, Rowan left her home for two hours to go to the gym. Before Rowan left, she had cleaned up her home from her daycare business, leaving everything in order. When Rowan returned home about 3:00 p.m., she saw Torress young nephew standing in front of her home. The nephew had been a former daycare child who stayed with Rowan and would have known that Rowan was not home. Rowan spoke to the child for a moment and entered her home through the garage and laundry room.

Rowans neighbor across the street, Joann Beltran-Garcia, called Rowans cell phone while Rowan was still in her laundry room. Beltran-Garcia wanted to know if Rowan had given Torres permission to enter her home. Beltran-Garcia had seen Torres near Rowans front door. As Rowan checked her home, she found eight-millimeter tapes scattered on the floor. Her husbands desk, which he left meticulous, was torn up. Rowans jewelry box had been gone through and the safe had been opened. The coin collection belonging to Rowans husband, which he kept in a wooden box on top of his desk, was missing, although the box was still on the desk. Rowans husband had been collecting old silver dollars, half-dollars, nickels, and pennies for 25 years.

Beltran-Garcia testified that she was standing in front of her bedroom window looking outside with an unobstructed view when she saw Torres walk up to Rowans home and pass through the wrought-iron gate. After walking through the entry gate, Torres walked in front of the doors to the garage. Beltran-Garcia saw Torres go around the side of the garage before Rowan arrived home.

After Rowan parked in her driveway, she opened the garage door and entered the garage. As the garage door closed behind Rowan, Torres exited from the front door and through the gate. Beltran-Garcia saw Torres walk swiftly down Irma Street and come back to Oak and Virmargo Streets. Torres was wearing a T-shirt and baggy jeans. Beltran-Garcia did not see Torres carry, drop, or attempt to conceal or throw anything.

Beltran-Garcia was watching Torres because, a few weeks earlier, Torres had tried to sell a figurine to Beltran-Garcias husband. Earlier that day, Torres had awakened Beltran-Garcia looking for her nephew and a dog. Torres looked startled and stumbled for words when Beltran-Garcia answered the door. Beltran-Garcia was suspicious of Torres.

Visalia Police Officer Dustin Thompson went to Torress home to question her. The fourth or fifth time Thompson knocked on the door, he called out so loudly that neighbors came outside their homes. Thompson learned that Torres lived with her sister. Thompson called the sister who came to the home and gave Thompson the key to the house and permission to enter the home. Thompson found Torres hiding underneath some clothes in the master bedroom closet.

Thompson arrested Torres for the burglary. Torres told Thompson she was hiding because she thought he was a parole agent and that she was at Rowans home looking for her nephew. Torres was not in possession of any coins and was unaware that any had been stolen. Thompson searched for the missing coins but never found them.

DISCUSSION

Torres first questions whether the coin collection in the victims home was authentic and whether any witness saw Torres leave the residence. In asking these questions, Torres is challenging the sufficiency of the evidence for burglary.

Under section 459, any person who enters a house or inhabited dwelling to commit a theft (or a felony) is guilty of burglary. (People v. Thomas (1991) 235 Cal.App.3d 899, 904.) Although in many cases the goal of a burglary is theft, burglary occurs regardless of whether a theft is accomplished or even attempted. More importantly, the conduct described and proscribed by section 459 is a single act: entry. (People v. Washington (1996) 50 Cal.App.4th 568, 577.) Intent to commit a felony is not necessarily required for a burglary conviction. Intent to commit petty theft is sufficient to support a burglary conviction. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1572.)

The standard of review on appeal is well settled. We review the whole record in the light most favorable to the trial courts judgment to determine whether it establishes substantial evidence: evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. If the verdict is supported by substantial evidence, we must defer to the trier of fact without substituting our evaluation of a witnesss credibility for that of the fact finder. The standard of review is the same in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.)

Appellate courts must accept logical inferences that the finder of fact may have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before the judgment of the trial court can be set aside for insufficiency of evidence, it must clearly appear that there is no evidence to support the verdict on any hypothesis. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.) One of the most fundamental rules of appellate law is that the judgment on appeal is presumed correct, and it is the appellants burden to affirmatively demonstrate error. (Sanghera, supra, 139 Cal.App.4th at p. 1573.)

Torres was seen by the victims neighbor, Beltran-Garcia, prowling around and then moving to the garage. Beltran-Garcia later saw Torres leaving through the wrought-iron gate at the front of the house. Beltran-Garcia did not see Torres actually going out the front door. A reasonable inference that can be drawn from Beltran-Garcias observations is that Torres entered the house through the garage and left through the front door because the victims had just returned home, entering through the same garage.

The prosecution did not have to prove that Torres actually took the victims coin collection; however, circumstantial evidence indicated that Torres likely did so while she was inside the victims home. Rowan had left the home clean and returned to find it ransacked. The state of the victims home, coupled with the timing of Torress presence inside it, indicates that Torres entered with the intent to steal. The jury was instructed on the lesser offense of attempted burglary but still found Torres guilty of burglary.^[3] We therefore reject Torress challenge to the lack of evidence concerning the authentication of the coin collection or whether she was actually seen leaving the front door of the dwelling.

Torres raises issues concerning a potential mental illness. Torres asks whether she is a mental health patient, if she was taking medication for a psychiatric condition, the state of her mental health diagnosis, and whether the court would object to her being placed in Patton State Hospital. The only matters that appear in the record concerning Torress mental health status are her letter on appeal and several comments made in the probation report. Torres told the probation officer that she would commit suicide if she lost her appeal. The probation officer indicated in the report that her mental health is questionable.

The record does not contain any evidence indicating Torress mental health diagnosis, her mental health history, whether she is currently on medication for a mental health disorder, or whether she has taken any type of medication in the past. Torress comments to the probation officer concerning a mental health problem and suicidal ideation are potentially reflective of a mental health condition. Unfortunately, the record contains no other information that would enable this court to evaluate her claim on appeal since neither Torres nor her trial counsel raised this issue during the proceedings before the trial court.

Argument that relies upon matters outside the record may not be considered on appeal.^[4](See People v. Smith (2007) 40 Cal.4th 483, 507; People v. Allen (1999) 21 Cal.4th 424; 439; People v. Barnett (1998) 17 Cal.4th 1044, 1183.) Given the lack of information about Torress mental health, we cannot evaluate on appeal her mental health status or whether it affected her ability to assist her counsel. In any event, Torres may pursue the remedy of filing a petition for writ of habeas corpus on the issue of her mental health and whether it affected her ability to assist counsel during her trial. Should Torres choose to do so, her petition must first be filed in the Tulare County Superior Courtnot here. (In re Hillery (1962) 202 Cal.App.2d 293, 294.)

In sum, Torress arrest occurred only after her sister gave officers the key to their home and permission to enter. In doing so, the officers had probable cause to believe Torres had burglarized the victims home. Following our independent review of the record, we conclude there are no reasonably arguable legal or factual arguments other than the trial courts failure to impose or to strike the prior prison term enhancement upon a statement of reasons.

DISPOSITION

The judgment is affirmed.

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^*Before Wiseman, Acting P.J., Cornell, J. and Gomes, J.

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

^[2]Ordinarily, the provisions of section 667.5, subdivision (b), are mandatory. The court must either impose sentence or strike the sentence upon a proper statement of reasons. (People v. Irvin (1991) 230 Cal.App.3d 180, 192-193.) In People v. Jones (1993) 5 Cal.4th 1142, 1149-1152 (Jones), the California Supreme Court held that where a section 667.5, subdivision (b), enhancement was for the same underlying offense as a section 667, subdivision (a), enhancement, the provisions of section 654 prohibiting multiple punishment applied to the enhancements and the lesser enhancement could not be applied. The Supreme Court ordered the prior prison term enhancement stricken. (Jones, supra, 5 Cal.4th at p. 1153.) The trial court here imposed and stayed execution of the prior prison term enhancement. This procedure is currently permitted by California Rules of Court, rule 4.447. (People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9.)

^[3]The jury posed three inquiries to the court during its deliberations. The first was a request for Scotch tape. The second inquiry was to have Beltran-Garcias testimony read back. The third question was for the court to explain the difference between burglary and attempted burglary. The court instructed the jury to refer back to the jury instructions.

^[4]Torres also argued in her letter brief that there was animosity between her and her neighbors. This is also a point that rests outside the appellate record.