P. v. Eatmon

Filed 9/28/07 P. v. Eatmon CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant and appellant Kevin Eatmon appeals the judgment and sentence imposed following his jury trial conviction for first degree burglary. Appellant contends the trial court erred by giving CALCRIM 359 (Corpus Delicti) and CALCRIM 362 (Consciousness of Guilt). Appellant also contends there was insufficient evidence to support a finding that an occupant was present in the home at the time of the burglary, and that such finding should have been submitted to the jury rather than decided by the court. We affirm.

PROCEDURAL BACKGROUND

The original Information was filed on April 7, 2004. The first amended Information accused appellant of one count of first degree residential burglary, in violation of Penal Code sections 459 and 460, subdivision (a).[1] Also, the Information alleged that Hilma and Mark Jones, who were not accomplices of appellant, were present in the residence during the burglary, and therefore the offense is a violent felony pursuant to section 667.5, subdivision (c)(21). The Information also alleged two prior Three Strike convictions for residential burglary (one in 1987 and one in 1997), two prior convictions for commercial burglary and five prior felonies for which appellant served a prison term.

On June 12, 2006, the People began its presentation of the case to the jury. On June 15, 2006, the parties delivered closing arguments and the jury began deliberations. After about two hours of deliberation, the jury returned a verdict of guilty on the charge of first degree burglary. On July 28, 2006, the court held a bench trial regarding appellants prior convictions, and found all prior convictions and strike allegations true. Proceeding to sentence, the court struck the 1987 strike conviction prior pursuant to section 1385. The court sentenced appellant to a determinate term of 20 years-to-life as follows: mid-term of 4-years on the burglary count, doubled to 8-years due to the prior 1997 strike conviction; two enhancements of 5-years under section 667, subdivision (a)(1) for a total of 10 years; five enhancements of 1-year pursuant to section 667.5, subdivision (b), with three stayed. Appellant filed a timely notice of appeal on August 18, 2006.

TRIAL TESTIMONY

Prosecution Case

Mark Jones testified that on August 31, 2003, he and his wife, Hilma, together with their children Nathan, Steven and Sara, locked up and left the family home at around 2:30 p.m. for an early dinner at a local restaurant in celebration of Marks birthday. The family returned home about 40 minutes later because the restaurant was not yet serving its baked potatoes. Mark stood on the sidewalk admiring a black BMW parked in front of his house. One of his kids yelled that the front door to the house had been broken open. Mark quickly went into the house and noticed the latch side of the front door was in splinters. One of the children said, I hear something in the bedroom. Mark stated the sliding glass door in the master bedroom was covered by a set of vertical blinds, and he heard those blinds rattling. After he heard the blinds rattling, he looked out the sliding glass door in the family room and saw a male starting to run across the back yard from the direction of the master bedroom.[2] Mark described the man as black, athletically built, with close cropped hair, wearing a white T-shirt and long, dark-colored jogging pants. Mark watched the man run across the yard and was unsure if he would be able to scale the fence. After he saw the man make it over the fence, Mark ran back out the front door to see where the man went. Mark estimated in took him about five seconds to get out to the front of his house. Just then he noticed a black male walking towards him. It was the same black male Mark had just watched run across the backyard and jump the fence. Mark stated he was very sure it was the same man. Mark identified appellant in court as that person. No one else was in sight and appellant was about 30 feet away when Mark noticed appellant walking slowly towards him. As Mark talked to appellant, appellant kept walking towards the back BMW parked in front of the house. Appellant got into the BMW and drove off. Mark stated appellant remained calm during their conversation but was determined to keep walking. Mark noticed beads of perspiration on appellants face. Before appellant drove off, Marks daughter Sara handed him the phone. Sara had already contacted 911. Mark was standing directly behind the BMW and he read off the license plate and gave a description of appellant. Ten minutes later a police officer arrived and Mark gave a statement. Looking through the house to see if anything had been taken or moved, Mark found their jewelry in a pillow case which was lying on top of the bed. A few days later, Mark was shown a photographic line-up and he picked out appellant as the burglar.

Hilma Jones testified that when the family returned from the restaurant she noticed there was a big black BMW parked in front of their house. After looking at the car, she approached the front door to the house. She heard her daughter say, Look at the front door. Hilma noticed one edge of the door was all splintered. Hilma was the last of the family to enter the house. Hilma stated her daughter entered the house first and went directly to the cordless phone in the family room to call the police. Hilma stated her husband and son were crouching in the hallway where it turns left towards the bedroom, saying, Theres someone in the house. Can you hear them? Hilma heard a scrambling sound, like a door being shaken. Hilma stated her husband yelled, Get out. Get out. Next thing, Hilma saw a man running across the patio. She watched as he ran across the yard and scaled the fence. Hilma stated the man was black, about six feet, two inches tall, of athletic build, wearing a white T-shirt that hung over his pants, long sweat pants and athletic shoes.[3] He had close-cut hair that was slightly gray in color. Hilma said she was amazed how he cleared the six-foot high fence without difficulty. Hilma went to look out the kitchen window into the adjacent school yard, but heard someone say, Hes out front. So she walked out the front door and saw the man come around the corner. Hilma went back inside to get her digital camera, but after taking some photos of the man she realized the batteries were dead. Hilma identified appellant in court as the burglar. Hilma said when she went out front and saw appellant she was sure he was the same man whod just run across her yard, because he was the same height, race, build, had the same hair and was wearing the same clothes. Also, Hilma said she was convinced it was the same person because it was just a moment from when the fence was scaled [until] he walked around the corner, and she noticed he was agitated because his eyes were just round as silver dollars. A few days after the incident, a detective came to the house and showed Hilma and her husband a photographic line-up separately. Hilma picked out appellant as the burglar.

Ray Russell, a neighbor of the Joneses, testified he and his wife were driving away from their home when he noticed an agitated Mrs. Jones taking a photograph of a man walking towards a dark car. Russell saw one of the Jones boys put his hands up to restrain the man but the man knocked the boys hands away. Russell thought maybe something was wrong. The next street up Russell noticed the same man following behind him in the black car. Russell saw the man roll through a red stop light, turn left, and drive off.

Officer Marcus Morales testified that on August 31, 2003, he was working as a police officer for the City of Lafayette and was dispatched to the Joneses residence on Avalon Avenue in response to a burglary call. Morales stated the front door showed signs of forced entry. Inside the home, Morales noticed someone had ransacked through jewelry boxes, which were lying on top of the bed in one of the rear bedrooms. At some point, Morales received information that the name of the registered owner of the black BMW which had left the scene was Kevin Eatmon. Morales stated that he went over the areas where the suspect might have left prints, but according to the witnesses the suspect was wearing socks or gloves on his hands as he fled. The socks worn by the suspect were recovered at the scene and booked into evidence.

Defense Case

Appellant testified in his own defense. Appellant stated that at the time of his arrest he was working as a driver for a limousine company. The black 1993 BMW 740i was his personal vehicle, which he purchased in 2001. On the day in question, appellant was returning to Oakland from an auto auction in Pittsburg when he started to feel lightheaded and dizzy due to his diabetes condition. When this happens, appellant usually eats something or goes jogging. Appellant decided to get off the freeway and go to Stanley Middle School in Lafayette for a work-out. He knew the school because hed been there once before with friends. Due to the no parking signs at the school, appellant parked around the corner and walked back round to the school, where he jogged for about 15-20 minutes around the track. As appellant walked back to his car, he saw Mark Jones walking towards him. Jones seemed excited about something. Jones asked him, Hey, . . . what were you doing in my back yard? As Jones got closer he said, What were you doing in my house? Appellant told Jones he didnt know what Jones was talking about because hed just come from jogging at the school. Jones continued to follow appellant, asking if he could search appellant and look in appellants pockets for something that might be missing from his house. Appellant told Jones, Well, sir, excuse me, I havent been in your house.

Appellant testified: So I kept walking, and as I approached my car, he [Jones] said, Well, can I look in your trunk? And I . . .just told him, For what? And he said, You might have some of my property in your trunk. And I said, Excuse me, sir, I dont know what youre talking about. At that point, appellant saw more people in front of the house and someone with a camera. Appellant was afraid he was going to get into trouble, and acknowledged he had a prior conviction for a felony involving theft and two prior convictions for commercial burglary. After Jones backed up and let appellant into his car, appellant drove off. Appellant denied running any red lights as he left the area. Appellant stated he did not enter the Joneses house and did not see any other tall black men as he walked back from the school to his car.

On cross-examination, appellant stated he was six feet five inches tall and weighed about 210 pounds at the time of the burglary. He was wearing jogging pants and a white T-shirt on the day in question. Appellant acknowledged he fitted the Joneses description of the burglar. Appellant stated that on the day he was arrested he was interviewed by Detective Nugent of the Lafayette Police Department. He admitted he told Nugent he had been jogging in Lafayette but had not told Nugent the jogging was prompted by his diabetes. Also, he did not tell Nugent hed been to Stanley Middle School before. Appellant also conceded that as he drove to the school he went past a couple of dozen places where he could have stopped to get something to eat in order to alleviate his diabetes symptoms. Appellant stated he ran around the track for 15-20 minutes but didnt sweat anywhere on his body, just perspired a little on his face. Also, the prosecutor questioned appellant about handwritten notes prepared by appellant about eight or nine months before for purposes of refreshing his recollection of events. Appellants notes stated he stopped for something to eat at Jack in the Box in Pittsburg before driving towards Lafayette. Appellant acknowledged he ate, then felt light-headed, then jogged to combat the light headedness. He did not feel dizzy before he went to the Jack in the Box. Appellant acknowledged his notes said hed been to the Stanley Middle School several times before, contrary to his testimony that hed only been there once before in 1998. Appellant further acknowledged that when interviewed by Detective Nugent on the day of his arrest he did not tell Nugent about the auto auction in Pittsburg, about going to Jack in the Box, about why he went jogging at the Stanley Middle School or how long he jogged at the track.

The defense also called Dr. Geoffrey Loftus, a professor of psychology at the University of Washington in Seattle. Dr. Loftus testified as an expert in perception and memory. Dr. Loftus testified that high confidence in identification on the part of a witness does not always mean the witness is accurate in that identification. He further testified that there are four general circumstances which affect the accuracy of a persons memory: (1) the nature of the environment (e.g., if perception time is short or lighting is dark); (2) the physical condition of the witness (e.g., does witness have poor vision, is he or she under the influence?); (3) retention interval (i.e. what happens between the event and when the witness is called to remember it, e.g., is the witness thinking about it or talking to others about it, which can lead to memory distortion); (4) the nature of the procedure used to elicit information from the witness (e.g., use of biased identification procedures or leading questions). Dr. Loftus added that when stress is very low or very high, mental functioning is poor. Dr. Loftus described a phenomenon known as change blindness which demonstrates that people can have trouble remembering something that happened just a couple of seconds before. He described another phenomenon known as cross-racial identification, which demonstrates that people are better able to identify and recognize members of their own race as opposed to members of other races. Dr. Loftus also discussed the meaning of inferential memory. This is where people make an inference then store it as a memory. For example, if its a dark night and you see someone run behind a building, and a second later a person emerges from the other side of the building, then you infer its one and the same person and store the inference as truth.

Rebuttal

After the defense rested, the People called Sergeant Daniel Nugent of the Contra Costa Sheriffs Office, who testified that he investigated the Joneses burglary while on assignment as a detective for the Lafayette Police Department. Nugent put together a photo line up including appellant and met with Mark and Hilma Jones at their home on September 4, 2003. He admonished them before they viewed the line up. Nugent met with them separately in the back yard when they viewed the line-up. According to Nugent, Mark said, Piece of cake, and immediately tapped his finger on appellants photo. Hilma also picked appellant out from the photo line up. After the Joneses identified appellant, Nugent went to the address where appellant was living. He noticed the black BMW parked in front of the house. The BMW did not have its California license plate. Rather, it had a paper plate from a dealership. Nugent contacted the Oakland Police Department warrant squad to have appellant arrested. Following his arrest, Nugent took appellant to the Lafayette Police Department for interview. The interview lasted about 45 minutes. Nugent explained to appellant why he had been arrested and asked him why he was in Lafayette on the day of the burglary. Appellant answered that he was there jogging. Also, appellant denied being in the Joneses back yard. Nugent told appellant he did not believe him. Nugent asked appellant to consider what a huge coincidence it was that a man who looked and dressed just like appellant would happen to be in the same location at the same time as appellant. Appellant replied that it was a coincidence. Appellant told Nugent he did not see anyone else in the vicinity that looked like him. Appellant did not tell Nugent about going to an auto auction, stopping at a Jack in the Box in Pittsburg, or a diabetic dizzy spell.

DISCUSSION

A. Jury Instructions

1. Standard of Review

In reviewing a claim of error in jury instructions in a criminal case, this court must first consider the jury instructions as a whole to determine whether error has been committed. (Citations.) We may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record. (Citation.) An appellate court cannot set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes that the error has resulted in a miscarriage of justice. (Cal. Const., art. VI,  13.) A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error. (Citations.) (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331; (People v. Flood (1998) 18 Cal.4th 470, 490 [the prejudicial effect of instructional error is determined by asking whether a reasonable probability exists the outcome would have been different but for the error].)

2. Corpus Delicti Instruction

At the jury instruction conference before closing arguments, the trial court agreed to give CALCRIM 358 (Evidence of Defendants Statements) as requested by the People without objection by defendant. The trial court then stated: I think I have a sua sponte obligation if Im admitting statements to give 359.[4] Accordingly, the trial court gave CALCRIM 359 (Corpus Delicti: Independent Evidence of a Charged Crime) without objection by either party, as follows: The defendant may not be convicted of any crime based on his out-of-court statements alone. Unless you conclude that other evidence shows someone committed the charged crime, you may not rely on any out-of-court statements by the defendant to convict him. [] The other evidence may be slight and need only be enough to support a reasonable inference that someones criminal conduct caused an injury, loss, or harm. The other evidence does not have to prove beyond a reasonable doubt that the charged crime actually was committed. [] The identity of the person who committed the crime may be proved by the defendants statements alone. [] You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.

Appellant contends the use of the CALCRIM Corpus Delicti instruction in a case without confessions or admissions diluted the standard of proof and allowed conviction based on less than proof beyond a reasonable doubt.[5] We disagree.

On the one hand, appellant is incorrect in saying this was a case without . . . admissions. To the contrary, appellant told Detective Nugent that he was only jogging in Lafayette on the day of burglary, that he was not in the Joneses back yard, and that it was just a coincidence that he happened to be in the same spot as a man, answering to his description, who had just jumped over the Joneses backyard fence into the street. Although appellant patently offered these statements for exculpatory purposes, they are nonetheless admissions. (People v. Mendoza (1987) 192 Cal.App.3d 667, 676 [stating an admission simply is any extrajudicial statementwhether inculpatory or exculpatorywhich tends to prove his guilt when considered with the rest of the evidence. ]; People v. Brackett (1991) 229 Cal.App.3d 13, 19 [An admission is an extrajudicial recital of facts by the defendant that tends to establish his guilt when considered with the remaining evidence in the case. (Citation.)].)

On the other hand, even if the corpus delictiinstruction was superfluous under the facts of this case (there was no question a crime had been committedthe issue was the identity of the perpetrator), there is no probability whatsoever a miscarriage of justice occurred as a consequence. In the first place, the last paragraph of CALCRIM No. 359 expressly cautions the jury that it cannot convict unless the People prove defendants guilt beyond a reasonable doubt. The court also instructed the jury with CALCRIM 103 and 220, which define reasonable doubt, reiterate that the jury can only convict if the People proved each element of the charged crimes beyond a reasonable doubt, and instruct the jury that, in deciding whether the People have proved their case beyond a reasonable doubt, the jury must impartially compare and consider all the evidence that was received throughout the entire trial. (CALCRIM 103 & 220, emphasis added.) Furthermore, the jurors were instructed in accord with CALCRIM 200 that Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them. While this language from CALCRIM 200 does not render an otherwise improper instruction proper, it may be considered in assessing the prejudicial effect of an improper instruction. (People v. Saddler (1979) 24 Cal.3d 671, 684 [discussing similar language in CALJIC 17.31].) Taken together, these further instructions dispel any possible notion that the jury could have misunderstood the requisite burden of proof on account of the corpus delictiinstruction alone.

Moreover, from an evidentiary standpoint, it is beyond the realm of possibility that the jury, as appellant suggests, could have determined the identity of the perpetrator from appellants statements alone. Patently, if the jury had believed appellants statements, it would have acquitted him. Just as patently, the jury did not acquit appellant because it determined appellant was the burglar based on the testimony of Mark and Hilma Jones, not based on appellants admissions. Furthermore, that the corpus delicti instruction was merely superfluous is shown by the fact neither party even mentioned it in closing arguments. Indeed, as the prosecutor stated at the beginning of her closing argument: I have every confidence that [defense counsel] will get up here and agree with me that in this case a residential burglary was committed. The question for you all to decide is whodunit. In fact, the main reference in the prosecutors closing argument to anything said by appellant was to matters that appellant failed to mention to Detective Nugent when interviewed, thereby undermining appellants trial testimony in the prosecutors view. And, as predicted by the prosecutor, defense counsel stated that the only thing I agree with [the prosecutor on is that] there was a residential burglary. Im not going to dispute that. I cant dispute that. Instead, defense counsel argued, based on the theories advanced by Dr. Loftus, that the jury should not trust the eyewitness identification of appellant by the Joneses as the man they saw running across their back yard. However, this theory was squarely rejected by the jury. In sum, any error in giving the corpus delicti instruction was harmless.

3. CALCRIM 362

The trial court, at the request of the People and without objection by appellant, gave CALCRIM 362 (Consciousness of Guilt: False Statements) as follows: If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.

Appellant contends there was no evidence to support giving CALCRIM 362. However, the record shows appellant made several false or misleading out-of-court statements, such as when he told Detective Nugent that hed only been jogging in Lafayette and it was a complete coincidence that he was outside the Jones house at the same time as another man matching his description had just jumped over the Joneses back yard fence. Even though appellant stuck to this story at trial, the jury chose to believe the Joneses testimony, meaning it could reasonably have found appellants pretrial statements were willfully false and made with consciousness of guilt.

(People v. Edwards (1992) 8 Cal.App.4th 1092, 1103-1104 (Edwards) [The giving of CALJIC No. 2.03^[[6]] is justified when there exists evidence that the defendant prefabricated a story to explain his conduct. The falsity of a defendants pretrial statement may be shown by other evidence even when the pretrial statement is not inconsistent with defendants testimony at trial.].) Accordingly, we conclude the trial court did not err by giving of CALCRIM 362 (Consciousness of Guilt: False Statements).

B. Occupancy Allegation

Section 667.5 provides that [a]ny burglary of the first degree. . . wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary is a violent felony for the purposes of that section. ( 667.5, subd. (c)(21) [italics added].) One sentencing consequence of a conviction for a violent felony is that a defendant . . . may not accrue presentence conduct credits greater than 15 percent of his or [sic] actual period of confinement. ( 2933.1, subd. (c).) (People v. Garcia (2004) 121 Cal.App.4th 271, 274 (Garcia).)

Here, the trial court concluded the evidence warranted a finding of occupancy. Appellant contends there was insufficient evidence to support a finding of occupancy and also the occupancy issue should have been submitted to the jury. We reject both contentions.

1. The Evidence of Occupancy Was Sufficient

We review for substantial evidence the trial courts finding that another person, other than an accomplice, was present in the residence at the time of the burglary. (Garcia, supra, 121 Cal.App.4th at p. 280.)  The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] [T]he relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] . . . The California Supreme Court has held, Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].  [Citations.] (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430 (Gaut).) The standard of review remains the same when the Peoples case relies mainly on circumstantial evidence. (People v. Sanchez (1995) 12 Cal.4th 1, 32.)

Appellant contends the evidence here shows that he fled the premises as soon as the occupants arrived and that it may be inferred he was already outside the sliding glass door when the Joneses heard noises in the bedroom. However, when reviewing for substantial evidence we must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. (Gaut, supra, 95 Cal.App.4th at p. 1430. [italics added].) Viewed in this way, the record amply supports

the trial courts occupancy finding.

Mark Jones testified he was looking at the black BMW parked in front of his house. His children had gone up to the front door and one of them said the door was broken in. Mark stated he then quickly came into the house. His children were already in the house and one of them said, I hear something in the bedroom. This evidence alone supports a finding appellant was still in the house when the Joneses were present. After that, Mark said he heard the blinds on the inside of the bedroom sliding door rattling before seeing a man running across the patio, which supports the inference in favor of the judgment that appellant decided to make his getaway after hearing the Jones had returned. This inference finds further support in Hilmas testimony. Hilma said she was the last of the family to enter the house. Hilma stated that when she came into the house she saw her husband and son crouching in the hallway saying, Theres someone in the house. Can you hear them? Hilma said her husband yelled, Get out. Get out, then she saw a man running across the patio. In sum, ample evidence supports the trial courts finding of occupancy.

2. Occupancy Was Not a Jury Question

Appellant requested the issue of occupancy be submitted to the jury and prepared a verdict form to that effect. The trial court, relying on Garcia, supra, 121 Cal.App.4th 271, denied appellants request on the grounds occupancy was a matter for the court to decide. Appellant contends the charged and proved language of section 667.5, subdivision (c)(21), means that a finding of occupancy must be submitted to the jury.

This very contention was addressed and rejected in Garcia, supra, 121 Cal.App.4th 271. The court reasoned as follows: The charged and proved terminology of section 667.5, subdivision (c)(21) itself does not mandate a jury determination of the issue of a nonaccomplices presence at the time of the offense: This language is markedly different from that used by the Legislature when it wanted to extend to a defendant the right to have a factual issue tried to the jury or the court acting as the trier of fact. For example, section 1170.1, subdivision (e), which governs most determinate sentences, provides, All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact. Again, in section 667.61, the One Strike law considered by the Supreme Court in People v. Mancebo (2002) 27 Cal.4th 735, the Legislature specifically provided, For the penalties provided in this section to apply, the existence of any [aggravating] fact required under subdivision (d) or (e) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact. ( 667.61, subd. (i); see Mancebo, at p. 751, [The provisions of the One Strike law, taken as a whole, require that subdivision (e) qualifying circumstances be pled and proved ( 667.61, subd. (f)), and as elsewhere provided, be alleged in the accusatory pleading and either admitted by the defendant in open court or found true by the trier of fact. ( 667.61, subd. (i).)]; see also  452.1, subd. (b) [circumstances requiring sentence enhancement for aggravated arson: The additional term specified in subdivision (a) of Section 452.1 shall not be imposed unless the existence of any fact required under this section shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.], 186.33, subd. (b)(2), 550, subd. (d), & 12022.53, subd. (j).)

The pleading and proof requirements of section 667.5, subdivision (c) safeguard the defendants right to notice of the facts the prosecution intends to prove as well as the due process requirement that the People actually prove the facts required either for imposing an increased penalty or for making decisions regarding the severity of the sentence within the prescribed range. (Citations.) As with other sentencing facts, however, proof that a first degree burglary falls within section 667.5, subdivision (c)(21), is properly presented to the sentencing court. (Citations.)

Indeed, in an analogous situation the Supreme Court held that determining whether a prior conviction is a serious or violent felony for purposes of the Three Strikes law is the type of inquiry traditionally performed by judges as part of the sentencing function (citation), notwithstanding that the determination may have a factual content (citation) and that the defendant has been granted a statutory right to a jury trial to decide whether the defendant has suffered the prior conviction. (Citations.) We see no reason in either policy or the statutory language for holding the question whether a conviction for first degree burglary is a violent felony within section 667.5, subdivision (c)(21) must be determined by a jury when the issue is eligibility for presentence conduct credits but may be tried to the sentencing court when the issue is the far more serious question whether the defendants prior conviction qualifies as a strike. (Garcia, supra, 121 Cal.App.4th at pp. 278-280 [italics added, fn. omitted].)

We find the reasoning of the Garcia court persuasive and adopt it here. Consequently, we reject appellants contention that he was entitled to a jury determination on the issue of occupancy based on the charged and proved language of section 667.5, subd. (c)(21).

DISPOSITION

The judgment is affirmed.

_________________________

Horner, J.*

We concur:

_________________________

McGuiness, P. J.

_________________________

Siggins, J.

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* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Further statutory references are to the Penal Code unless otherwise noted.

[2] Mark stated the sliding glass door in the family room and the sliding glass door in the master bedroom are at 90 degrees to each other and both face the patio in the backyard area.

[3] Officer James Henry of the Oakland Police Department arrested appellant on a warrant on October 6, 2003. Henry stated appellant was 43 years old, about 6‑feet 5‑inches in height and weighed 200 pounds.

[4] The trial court was not entirely correct in saying it was required to give CALCRIM 359. The Bench Notes for CALCRIM 358 state that [i]f out-of-court statements made by the defendant are prominent pieces of evidence in the trial, then CALCRIM 359 . . . may also have to be given. . . .

[5] Although appellant failed to object to this instruction, the alleged instructional error is reviewable on appeal to the extent [it] affects his substantial rights. (Citation.). (People v. Prieto (2003) 30 Cal.4th 226, 247.)

[6] CALJIC 2.03 is the equivalent of CALCRIM 362.