PEOPLE v. SMITH
Filed 8/18/06; part. pub. order 9/7/06 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. CURTIS EDWARD SMITH, Defendant and Appellant. | E037036 (Super.Ct.No. BLF1710) OPINION |
Continue from part I ………
Contrary to defense counsel's claim, we do not believe that our holding will result in a significant increase in the number of claims of burglary by one spouse against the other during a divorce where one spouse is awarded sole possession. The reason for this is because there must be a danger that arises from one spouse's mere entry into the family home. Such danger was present in this case by virtue of (1) defendant's past physical abuse of Geraldine, and (2) the TRO. Here, defendant's actions went beyond the mere violation of the TRO. As the facts demonstrated, defendant was in violation of the TRO by being in the shed on the property when Geraldine was present. However, he did not stop there. As the jury found, defendant, who knew that Geraldine was in the house, forced his way into the family home with the intent to commit a crime. In other words, he committed a burglary.
Finally, defendant claims that section 273.6[1] conflicts with the burglary statute, and thus, section 273.6 should prevail over section 459. The People disagree, arguing that the two penal provisions do not cover the same conduct. One can commit a burglary without violating section 273.6. Conversely, one can violate section 273.6 without committing a burglary. We agree with the People.
SUFFICIENCY OF EVIDENCE OF ATTEMPTED MURDER
Defendant contends there was insufficient evidence to support the jury's finding that the attempted murder was committed with deliberation and premeditation.
In reviewing a claim of insufficiency of evidence, we must determine â€
