THE PEOPLE v. GILL

Filed 1/22/08

CERTIFIED FOR PARTIAL PUBLICATION^*

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Story continues from Part II .

V.

Sufficiency of the Evidence To Support Burglary Conviction

Following the preliminary hearing, during trial, and in a motion for new trial, defendant unsuccessfully challenged the sufficiency of the evidence to support the burglary charge to go to the jury, and to sustain the conviction. The court ruled at the hearing on defendants section 1118.1 motion that there was enough evidence to take the burglary count to the jury. The court explained: [T]he issue is whether the defendant had an absolute and unconditional right to enter the residence. And it seems to the Court that its apparent from the defendants state of mind, from the victims state of mind and the defendants, that he did not have an absolute and unconditional right to enter the residence.

On appeal, defendant contends that a man who breaks into his family home after a marital fight is not guilty of residential burglary, and maintains that the court denied him his federal and state constitutional rights to due process and a fair trial by allowing him to be charged and convicted of a non-offense. However, his argument focuses once again on the sufficiency of the evidence -- that based on the facts of this case, he had a right to enter the residence. We conclude the jury properly convicted defendant of burglary.

Section 459 provides in pertinent part: Every person who enters any house, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary. The statute retains two important aspects of common law burglary: the entry must invade a possessory right in the building and it must be committed by one who has no right to be in the building. [Citation.] Because the crime of burglary requires the invasion of a possessory right in a building, one cannot be found guilty of burglarizing ones own residence. (People v. Smith (2006) 142 Cal.App.4th 923, 930 (Smith), citing People v. Gauze (1975) 15 Cal.3d 709, 714 (Gauze).)

Defendant relies on Gauze, where the defendant had an argument with his roommate away from the apartment they shared, told the roommate to Get your gun because I am going to get mine, returned to the apartment with a shotgun, and shot the roommate. (15 Cal.3d at p. 711.) Gauze appealed his conviction of assault with a deadly weapon and burglary. (Ibid.) The Supreme Court reversed the burglary conviction, concluding that defendant cannot be guilty of burglarizing his own home. His entry into the apartment, even for a felonious purpose, invaded no possessory right of habitation; only the entry of an intruder could have done so. More importantly, defendant had an absolute right to enter the apartment. . . . It was a personal right that could not be conditioned on the consent of defendants roommates. (Id. at p. 714.) The Supreme Court observed that [i]n contrast to the usual burglary situation, no danger arises from the mere entry of a person into his own home, no matter what his intent is. He may cause a great deal of mischief once inside. But no emotional distress is suffered, no panic in engendered, and no violence necessarily erupts merely because he walks into his house. (Id. at p. 715.)

Since the decision in Gauze, courts have held that [t]o sustain a burglary conviction, the People must prove that a defendant does not have an unconditional possessory right to enter his or her family residence. [Citation.] [Citations.] (Smith, supra, 142 Cal.App.4th at p. 930.) The Gauze court contributed to this area of law by clarifying its earlier decision in People v. Sears (1965) 62 Cal.2d 737 (Sears), overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 510, footnote 17.

Among other things, the defendant in Sears challenged a felony murder instruction based on a burglary charge. (62 Cal.2d at pp. 739, 744.) The facts of that case were that three weeks before the incident giving rise to the criminal charges, defendant and his wife separated and defendant moved to a hotel. One evening defendant returned to the residence with a friend, purportedly to pick up his mail. Defendant entered through the unlocked front door with a steel pipe hidden under his shirt. He hit his estranged wife with the pipe and killed his young stepdaughter when she tried to protect her mother. (Id. at pp. 740-741.) In Sears, the Supreme Court reversed the conviction ongrounds other than instructional error. However, it stated in dictum that the evidence supported a felony murder burglary instruction, rejecting defendants contention that the court should not have given the burglary instruction because defendant, as Claras husband, had a right to enter the family home. One who enters a room or building with the intent to commit a felony is guilty of burglary even though permission to enter has been extended to him personally or as a member of the public. [Citation.] The entry need not constitute a trespass. [Citations.] Moreover, since defendant had moved out of the family home three weeks prior to the crime, he could claim no right to enter the residence of another without permission. Even if we assume that defendant could properly enter the house for a lawful purpose [citation], such an entry still constitutes burglary if accomplished with the intent to commit a felonious assault within it. (Id. at p. 746, italics added.)

Ten years later in Gauze, the Supreme Court further explained its earlier opinion, observing that Sears could be convicted of burglary was based on two separate considerations. First, Sears had no right to enter his wifes house; that fact alone supported the conviction. Second, even if he had a right to enter, the right was based on former section 157 of the Civil Code (now 5102) which gave a person the right to enter the separate property of his or her spouse, subject to certain conditions. Thus, Sears right to enter his wifes house . . . was at best conditional.An entry for anything but a legal purpose was a breach of his wifes possessory rights. . . . (Gauze, supra, 15 Cal.3d at p. 715, some italics added.)

More recently, in Smith, the court upheld a burglary conviction over defendants claim that he should not be convicted of felony residential burglary for entering premises in which he own[ed] a co-equal interest. (142 Cal.App.4th at p. 929.) Defendant was arrested and jailed on October 3, 2000, after beating his wife. (Id. at pp. 926-927.) She obtained a restraining order and an order removing defendant from the home and granting her sole possession. On October 10, 2000, after his release from jail, defendant entered the home by throwing a propane canister through a glass door, and viciously attacked his wife. (Id. at p. 927.) The court rejected defendants argument that he had a right to enter the residence. Citing both Gauze and Sears, the court explained that the court order which temporarily gave [defendants wife] sole possession denied defendant an unconditional possessory right to enter [the] family residence. (Id. at p. 931.) It emphasized that the possessory right protected under the Family Code differs from that contemplated under the Penal Code. The possessory right protected by section 459 is the right to exert control over property to the exclusion of others or, stated differently, the right to enter as the occupant of that structure. [Citation.] [Citation.] (Id. at p. 932.) The same principles apply to the facts in the case before us.

Although the aforementioned cases are factually dissimilar to this case in that T.G. did not have a court order granting her sole possession of the family home, was denied an emergency protective order, and defendant had only been out of the house for one day and evening, we believe the facts are within the principles annunciated in the Sears and Smith cases. Here, the evidence showed that T.G. asked defendant to leave the residence and he did so. Later that day, at T.G.s request, Gantt delivered a suitcase and money to defendant. Gantt collected defendants house keys from defendant without objection and returned them to T.G. By voluntarily leaving the house, giving up his house keys on January 31, 2004, and heeding the directives of T.G. to stay out of the family home, defendant waived his unconditional right to enter the home. By obtaining the house keys voluntarily from defendant, T.G. exertedpossessorycontrol over the family home to the exclusion of others, specifically the defendant. (Smith, supra, 142 Cal.App.4th at p. 932.) Defendants subsequent conduct demonstrated that he gave up his right to possessory interest in the house and understood he did not have the right to enter the residence at will. He parked his car on the public street in front of the house, and although he was upset, he did not attempt to enter or otherwise go inside the house. When the police arrived, defendant told them that while he thought it was unfair that he had to be the one to leave the home, he intended to wait in his car until T.G. let him back into the house. Although defendant was angry that he had been treated unfairly, he clearly knew that circumstances had changed.

Our conclusion that defendant was properly charged and convicted of burglary is consistent with the exception to the general rule, articulated in Smith, that a person cannot be convicted of burglarizing his or her own home. Gauze indicated that, under ordinary circumstances, no danger arises from the mere entry of a person into his own home, no matter what his intent is. He may cause a great deal of mischief once inside. But no emotional distress is suffered, no panic in engendered, and no violence necessarily erupts merely because he walks into his house. (Gauze, supra, 15 Cal.3d atp. 715.) Here, as in Smith, the occupants of the family home were estranged, there had been prior threats to the safety of the victim and there had been incidents of spousal abuse. The victims feared for their safety. (Smith, supra, 142 Cal.App.4th at pp. 926-927.) It is clear in these circumstances that danger did arise from the mere entry of defendant into his former home.

VI.

Upper Term Sentence

Citing Cunningham v. California (2007) 549 U.S. ____ [166 L.Ed.2d 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), defendant argues that the court violated his Sixth Amendment rights by sentencing him to the upper term for his convictions for rape by a foreign object in count 3 without permitting the jury to decide the aggravating factors beyond a reasonable doubt. The record demonstrates that the jurys true findings on four enhancement allegations support one of the aggravating circumstances. Moreover, even if we were to conclude there was error under Cunningham, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 (Chapman).)

We begin by rejecting the Attorney Generals argument that defendant forfeited his claim of Apprendi/Blakely/Cunningham error by failing to object on federal constitutional grounds at sentencing in October 2005. Any request for jury trial on the aggravating circumstances would have been futile, because the trial court would have been required to follow the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), overruled in part by Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at page 865], which was decided in June 2005, and deny the request. (People v. Sandoval (2007) 41 Cal.4th 825, 837-838 (Sandoval).)

Turning to the merits, we note that none of the aggravating circumstances cited by the trial court at sentencing come within the exceptions to the requirement of jury determination set forth in Apprendi and Blakely -- specifically, facts admitted by the defendant (Blakely, supra, 542 U.S. at p. 303) or the fact of prior convictions (id. at p. 301; Apprendi, supra, 530 U.S. at p. 490.)

Before imposing sentence on the specific counts, the court addressed defendant, observing that defendant did not grasp the severity of the crimes he committed or accept responsibility for them. The court continued: This was not a joy ride. This was not a sexual escapade. This was a cruel and sadistic attempt to extract revenge for a perceived wrong. You assaulted your wife in the most humiliating and terrifying way that you could think of. And only by some unexplained circumstance did you not fulfill your intention to kill her. When sentencing defendant to the upper term in count three, the court found the following specific circumstances in aggravation under California Rules of Court, rule 4.421:

(a)(1), that these assaults went beyond what violence, threats and cruelty normally associated with sexual assault, kidnapping and binding. This was a deliberate attempt to degrade, humiliate and psychologically terrorize the victim.

Subsection (a)(6), that he suborned perjury. Both the defendant and victim gave similar statements to the police after the incident. However, at trial, [defendant] testified that he was tired and just started making things up, and [T.G.] testified she was scared they were going to take her to jail and she lied, yet, they surprisingly lied about the exact same details. By the trial, both gave almost identical testimony which was diametrically opposed to their earlier statements. In addition, it was obvious that [T.G.] talked to [D.G.] a couple days prior to his testimony, telling him that something he had told the police wasnt true.

And then circumstances in aggravation (a)(8), the planning, that he disabled the phone, that he checked on it, that he parked the car around the corner so he wouldnt be seen. In his statement that, I had kind of plotted out a plan.

The court added two other circumstances in aggravation pursuant to California Rules of Court, rule 4.421(c):

First, the other victims in this case, [D.G.] and [C.G.]. Despite assertions to the contrary, both children overheard part of what was going on in the middle of the night. [] . . . [] The second factor in aggravation is that this was not a single isolated incident. This was the culmination of a pattern of conduct -- anger, violence and forced sexual conduct -- that escalated throughout the marriage.

Although the court did not submit these aggravating factors to the jury, the jury found true four special allegations in count 3, rape by foreign object, that support the first aggravating circumstance cited by the court -- that the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness. (Cal. Rules of Court, rule 4.421(a)(1).) The jury found true specific allegations that: (1) defendant kidnapped the victim of the above offense, and the movement substantially increased the risk of harm to the victim over and above the risk necessarily inherent in the underlying offense, within the meaning of . . . section 667.61(d)(2); (2) defendant kidnaped [sic] the victim of the above offense in violation of . . . section 207 or 209, and the kidnapping was for the purpose of Rape by Foreign Object, within the meaning of . . . section 667.8; (3) defendant kidnapped the victim of the above offense in violation of . . . section 207 or 209, and engaged in tying or binding of the victim in the commission of the present offense, within the meaning of . . . section 667.61(e)(1); and (4) defendant committed the above offense during the commission of a burglary, and the defendant had the intent to commit a violation of . . . Section 262(a), Spousal Rape or . . . section 289(a), Rape by Foreign Object, within the meaning of . . . section 667.61(d)(4). The existence of a single aggravating factor is legally sufficient to make defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728-729.)

However, even if we were to conclude the jurys findings on the special allegations did not support the stated circumstances in aggravation, and the court violated defendants Sixth Amendment rights by imposing the upper term of eight years in count 3, the upper term sentence stands. We review a denial of the right to jury trial on aggravating circumstances under the harmless error standard set forth in Chapman, supra, 386 U.S. 18 [17 L.Ed.2d 705]. (Sandoval, supra, 41 Cal.4th at pp. 838-839, citing Washington v. Recueno (2006) 548 U.S. ____ [165 L.Ed.2d 466] and Neder v. United States (1999) 527 U.S. 1, 8-15 [144 L.Ed.2d 35, 46-51].) Under this standard, we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jurys verdict would have authorized the upper term sentence. (Sandoval, supra, at p. 838.) If we conclude, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless. (Id. at p. 839.) The record in this case supports such a finding.

As we outlined in the statement of facts, defendant admitted the following facts in his interview with police the night of his arrest: (1) parking his car down the street from the house so T.G. and the neighbors would not know he was there; (2) borrowing a screwdriver from a friends house so he could open the telephone box; (3) disconnecting the telephone and calling from a nearby pay phone to make sure the line was dead; (4) returning to the house and trying to break down the front door; (5) removing the screen and entering through a window on the side of the house; (6) screaming at T.G., saying this is what [you] get; (7) pushing T.G. around and hitting her in the bedroom; (8) dragging T.G. by her arm or hair into the garage; (9) tying her up; (10) putting a gag in her mouth; (11) forcing her to have sex and sticking the flashlight into her vagina; (12) threatening to cut off her body parts; (13) putting T.G. face down and naked in the back seat of the car, hog-tying her, and driving out of the county; and (14) forcing T.G. to orally copulate him and swallow the ejaculate. Although defendant attempted to deny or explain away these admissions at trial, we conclude the jury would have found at least two aggravating circumstances -- California Rules of Court, rule 4.421(a)(1) and (a)(8) -- true beyond a reasonable doubt had it been given the opportunity. Accordingly, any Apprendi/Blakely/Cunningham error was harmless.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P.J.

MORRISON , J.

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^* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I, II, III, IV, and VI.