PEOPLE v. ALLEN

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Andrew James ALLEN, Defendant and Appellant.

No. H016184.

Decided: March 26, 1998

Barbara Michel(Under Appointment by the Court of Appeal in Association with the Sixth District Appellate Program), Berkeley, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Asst. Attorney General, Ronald A. Bass, Sr. Asst. Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, Shannon Garcia Chase, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant guilty of three counts of first degree burglary (Pen.Code, §§ 459, 460, subd. (a)), two counts of selling stolen property (Pen.Code, § 496), one count of access card forgery (Pen.Code, § 484f, subd. (b)), one count of being under the influence of a controlled substance (Health & Saf.Code, § 11550, subd. (a)) and one count of possessing a hypodermic needle or syringe (Bus. & Prof.Code, former § 4149).   The court found true allegations that defendant had suffered one prior conviction within the meaning of Penal Code sections 667, subdivisions (a) and (b) to (i) and 1170.12 and served a prior prison term for a felony conviction (Pen.Code, § 667.5, subd. (b)).  Defendant was committed to state prison for a total term of nineteen years and four months.   On appeal, he (1) challenges the sufficiency of the evidence to support the burglary counts, (2) claims that the Penal Code section 496 counts must be reversed because they violate the proscriptions against dual convictions for theft and receiving stolen property and (3) contests the sufficiency of the evidence to support the court's finding that his prior burglary conviction was a residential burglary conviction.   We affirm.

FACTS

On Wednesday, November 1, 1995, between noon and 1:30 p.m., the Hansen home in the Willow Glen area of San Jose was burglarized.   Some jewelry, a camera and a new shirt were taken.   Two bedrooms were left in disarray.   The burglar had apparently entered through an unlocked rear door.   At 1:45 p.m., defendant sold an item of jewelry taken from the Hansen home in this burglary to a secondhand dealer located 6.1 miles away from the Hansen home.

On Friday, November 3, 1995, between 11:00 a.m. and 1:00 p.m. the home of Darsi Gant and Kip Miller and the adjacent Mulvany home were burglarized.   These homes were in another part 1 of the Willow Glen area.   The Gant/Miller house was thoroughly ransacked. $5,000 worth of Gant's most valuable jewelry was missing, but her “silver or costume jewelry” had not been taken.   A brand new credit card in Gant's name and a black jewelry box had also been removed from the house.   None of the electronic equipment in the home had been taken.   The burglar had entered the home through an open rear bathroom window and exited through the back door.

Jewelry and coins were taken from the Mulvany home.   Gant's black jewelry box was found in the Mulvanys' bedroom. $37,000 worth of Felicia Mulvany's most expensive jewelry was missing, but her costume jewelry had not been taken.   A couple of items of her jewelry were found on the floor near the back door.   None of the Mulvanys' electronic equipment was missing.   The burglar had entered through the back door by breaking the door frame and forcing the door open after unsuccessfully attempting to pry a locked rear window open.   At 1:20 p.m., defendant sold items of jewelry taken in the burglary of the Gant/Miller home to a secondhand dealer located 3 miles away from the Gant/Miller home.

On the afternoon of Sunday, November 5, defendant used Gant's credit card to purchase merchandise at a clothing store.   That evening defendant used Gant's credit card to purchase gold jewelry at a department store in Santa Clara.   The salespeople at the department store became suspicious because defendant did not seem interested in the price or quality of the jewelry and he used a credit card he took out of his pocket rather than out of his wallet.   They contacted the store's security officer who made telephone contact with Gant. After defendant signed Gant's name to the credit card slip and attempted to leave with his purchases, he was detained.   A hypodermic syringe was found in his possession.   The syringe was in a small box with other items used for preparing and injecting heroin.   Defendant had no currency in his possession, and he was under the influence of heroin and cocaine.

Defendant was arrested and charged by information with three counts of first degree burglary (Pen.Code, §§ 459, 460, subd. (a)), two counts 2 of selling stolen property (Pen.Code, § 496), one count of access card forgery (Pen.Code, § 484f, subd. (b)), one count of being under the influence of a controlled substance (Health & Safe.Code, § 11550, subd. (a)) and one count of possessing a hypodermic needle or syringe (Bus. & Prof.Code, § 4149).   It was further alleged that defendant had suffered one prior conviction within the meaning of Penal Code sections 667, subdivisions (a) and (b) to (i) and 1170.12 and served two prior prison terms for felony convictions (Pen.Code, § 667.5, subd. (b)).  The prior conviction and prison prior allegations were bifurcated, and defendant gave up his right to a jury trial on those allegations.

The substantive counts were tried to a jury.   At the conclusion of the prosecution's case-in-chief, the trial court denied defendant's Penal Code section 1118 motion for a judgment of acquittal on the burglary counts.   Defendant's mother testified in his defense that she had been at defendant's Santa Clara apartment with him from 8:30 a.m. to 12:30 p.m. on November 3. In rebuttal, the prosecution established that defendant's apartment was 7 miles away from the scene of the November 3 burglaries.   At the instruction conference, defendant's trial counsel objected to the court's decision to instruct the jury that it was permitted to return guilty verdicts on all the burglary counts and the Penal Code section 496 counts.   In his argument to the jury, the prosecutor expressly based the Penal Code section 496 counts on defendant's sale of the jewelry to the secondhand dealers.   He also stated that “[i]n this particular case, you can be both the burglar and the possessor of the stolen property.”   The defense conceded that defendant was guilty of all of the counts other than the burglaries.

The jury returned guilty verdicts on all counts.   The court found the prior conviction allegations true and one of the two prison prior allegations true.   It reduced the access card forgery count to a misdemeanor and stayed the prison prior term.   Defendant was sentenced to a total term of nineteen years and four months in state prison.   He filed a timely notice of appeal.

DISCUSSION

A. BURGLARY COUNTS

Defendant claims that the record lacks sufficient evidence connecting him to any of the burglaries.   He maintains that it is “speculative to conclude” that his sale of property taken in each of the burglaries within hours after each burglary supports an inference that he was the burglar.

 “ ‘[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.’ ”  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, emphasis in original.)   “[The] appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”  (People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649;  accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237, 278 Cal.Rptr. 640, 805 P.2d 899.)  “A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.  [¶] ․ A finding of fact must be an inference drawn from evidence rather than ․ a mere speculation as to probabilities without evidence.”  (People v. Morris (1988) 46 Cal.3d 1, 21, 249 Cal.Rptr. 119, 756 P.2d 843, internal citations and quotation marks omitted.)

 “Possession alone of property stolen in a burglary is not of itself sufficient to sustain the possessor's conviction of that burglary.   There must be corroborating evidence of acts, conduct, or declarations of the accused tending to show his guilt.   When possession is shown, however, the corroborating evidence may be slight․”  (People v. Citrino (1956) 46 Cal.2d 284, 288-289, 294 P.2d 32, citations omitted.)

 The corroborating evidence in this case was not insufficient to establish that defendant was the burglar rather than merely a fence to whom the burglar had sold the loot.   Twice in a three-day period defendant sold loot from a burglary less than two hours after the burglary.   The most reasonable inference that can be drawn from this fact is that defendant had possession of the loot because he had taken it himself from the burglarized homes.   Defendant suggests that it is equally reasonable to infer that defendant had made contact with the burglar, purchased the stolen goods and thereafter resold the goods to the secondhand dealer.   The suggested inference is not reasonable.   Unless defendant was an accomplice of the burglar, it would be entirely unreasonable to infer that, without prearrangement, he coincidentally came into contact with the burglar immediately after each burglary.   In addition, it is highly unlikely that a fence who intended to immediately dispose of the purchased goods would acquire a stolen credit card and retain it for two days before using it.   The record contains sufficient corroborative evidence to sustain the jury's finding that defendant committed the burglaries.

B. PENAL CODE SECTION 496 COUNTS

Defendant claims that he could not be convicted of violating Penal Code section 496 because “the evidence shows the defendant may have also stolen the same property.”   He relies on In re Kali D. (1995) 37 Cal.App.4th 381, 43 Cal.Rptr.2d 581 and on the proscription against dual convictions for violating Penal Code section 496 and “theft” of the same property.   We reject the reasoning of Kali D. and therefore disagree with defendant's argument based thereon.   Because defendant was not convicted of “theft,” we find the proscription against convictions for both theft and violating Penal Code section 496 inapplicable.

 It has long been the rule in California that a defendant may not be convicted of both stealing and receiving the same property.  (People v. Jaramillo (1976) 16 Cal.3d 752, 757, 129 Cal.Rptr. 306, 548 P.2d 706.)   In 1992, the Legislature codified a version of this rule by adding a second paragraph to subdivision (a) of Penal Code section 496.  “A principal in the actual theft of the property may be convicted pursuant to this section.   However, no person may be convicted both pursuant to this section and of the theft of the same property.”  (Pen.Code, § 496, subd. (a), emphasis added.)   While the statutory language makes no mention of the statute of limitations, an uncodified statement of the Legislature's intent, which was part of the same legislation that added these two sentences, states that “[i]t is the intent of the Legislature to provide for the prosecution of principals in the actual theft of the property who continue to possess that property after the statute of limitations has run on the theft of the property.”  (Stats.1992, ch. 1146, § 2.)

Kali D. was a case in which the perpetrator was not found to have committed theft but was found to have violated Penal Code section 496.   The First District Court of Appeal reached the conclusion that the Legislature's statement of its intent contradicted the plain meaning of the statutory language.  “Thus is presented the novel situation where the plain meaning of the statute appears clear, but is contradicted by the intent clause, which was not enacted as part of the Penal Code. The plain meaning is that a thief may be convicted of either receiving stolen property or theft.   That plain meaning only becomes clouded when reference is made to the entire bill:  that its purpose was to modify the common law of this state to allow a receiver of stolen property, who happens to also be the thief, to be convicted of receiving when the statute of limitations has run on the theft.   This expression of legislative intent indicates a more limited repeal of the common law so that, as appellant contends, the actual thief can be convicted of the greater offense of receiving stolen property only when the limitations period has expired with respect to the underlying theft.”  (Kali D. at pp. 385-386, 43 Cal.Rptr.2d 581, emphasis added.)  “In construing the literal meaning of section 496, subdivision (a), with the express declaration of legislative intent, it appears to us that the Legislature intended the statute to be applied only to thieves who continue to possess the stolen property after the statute of limitations has expired on theft.   Such a construction accords full force and effect to the statutory amendment, the enacted bill's statement of legislative intent, and harmonizes them with existing law.”  (Kali D. at p. 386, 43 Cal.Rptr.2d 581, emphasis added.)   The First District concluded that the Penal Code section 496 conviction was improper because the prosecution's theory had been that the perpetrator was the actual thief.

The Fourth District disagreed with Kali D. in People v. Reyes (1997) 52 Cal.App.4th 975, 61 Cal.Rptr.2d 39.   It did not find the Legislature's intent statement to be inconsistent with the plain meaning of the statute.  “Under the plain language of the provision in question, a thief may be convicted of receiving the property he stole, without regard to whether a theft charge is time-barred.   We are constrained to literally interpret the statute, unless doing so would violate the Legislature's intent-to avoid the situation where a thief could retain possession of stolen property with impunity, because the statute of limitations on the theft had expired.   We conclude it would not, as there is no indication the Legislature intended to limit prosecution of a thief under section 496 to situations in which a theft charge was no longer an option.   To the contrary, such a limitation would render meaningless the provision's second sentence, which states:  ‘However, no person may be convicted both pursuant to this section and of the theft of the same property.’   A person could only be convicted of both crimes if (1) he or she was the actual thief of the property, and (2) the statute of limitations on a theft charge had not expired.   A literal interpretation of [the] second paragraph of section 496, subdivision (a) harmonizes [it] with legislative intent, and avoids rendering a critical portion of the provision nugatory.”  (Reyes at p. 987, 61 Cal.Rptr.2d 39.)

 In our view, the Fourth District's analysis of this issue in Reyes is more logical than the First District's analysis in Kali D. The Legislature's statement of its intent did not purport to restrict the import of the added language to the situation where the statute of limitations had run on the theft offense.   We agree with the Fourth District that Kali D.'s construction of the added language would make the second sentence superfluous.   The statute plainly permits a principal in the theft to be convicted under Penal Code section 496.

 Defendant's other contention is that he could not be convicted of violating Penal Code section 496 because this would violate the proscription against dual convictions for violating that statute and theft of the same property.   The flaw in this claim is that defendant was not convicted of theft.   He was convicted of burglary.   A burglary conviction does not require that the perpetrator be found to have committed theft.  (People v. Stewart (1986) 185 Cal.App.3d 197, 210 fn. 2, 229 Cal.Rptr. 445.) In this case, defendant was only found to have entered the homes with the intent to commit theft.   Neither the long-standing judicial rule nor the legislative proscription set forth in Penal Code section 496 extends to offenses other than theft.   Although an unpersuasive line of appellate cases had held that the judicial rule extended to burglary offenses (see cases cited in Stewart, supra, 185 Cal.App.3d at p. 210, 229 Cal.Rptr. 445), the Second District Court of Appeal recently rejected this line of cases in People v. Landis (1996) 51 Cal.App.4th 1247, 59 Cal.Rptr.2d 641 and held that this rule does not apply to burglaries.  (Landis at p. 1254, 59 Cal.Rptr.2d 641.)   We agree with Landis that this rule does not logically extend to burglary offenses.   Because the crime of burglary does not necessarily involve a theft, the rule is facially inapplicable to a burglary.   None of the appellate cases holding that this rule extends to burglary are binding on this court.   We hold that the proscription against Penal Code section 496 convictions for those also convicted of theft of the same property does not extend to those convicted of burglary.

C. PRIOR CONVICTION ALLEGATIONS

 Defendant claims that the evidence utilized by the prosecution to prove that he had suffered a 1989 residential burglary conviction was insufficient to prove the residential nature of that conviction because the evidence did not establish “the degree of the burglary.” 3  We find the evidence sufficient to support the court's findings.

The prosecution introduced a group of documents to prove the prior conviction allegations.4  One document was an abstract of judgment reflecting that defendant had been convicted of the 1989 burglary by plea and committed to state prison.   The abstract described the 1989 burglary offense as “unlawful entry to res” and reflected that defendant had received the lower term of two years for his offense.   This abstract inaccurately gave the same description and term for a 1990 burglary count to which defendant also pled.   The information charging defendant with the 1989 burglary alleged that defendant “did willfully and unlawfully enter the residence, and building occupied by Alfred W. Kirby ․ with the intent to commit larceny.”   A form entitled “Plea of Guilty/Nolo Contendere,” signed by defendant when he entered his plea to the 1989 burglary offense, contained defendant's acknowledgement that he could receive a prison term of “two, four or six years” for the 1989 burglary offense to which he was pleading guilty.

Defendant focuses on the abstract's misdescription of the 1990 burglary conviction and concludes therefrom that the documents were too unreliable to prove the residential nature of the 1989 burglary conviction.   If the only basis for the court's finding were the abstract's description of the 1989 burglary offense as an “unlawful entry to res,” defendant might have a point.   However, the court's finding regarding the residential nature of defendant's 1989 burglary conviction was supported by the documentation reflecting that defendant's guilty plea had been in response to a charge of residential burglary and defendant's written acknowledgement in the plea form that he faced a prison term for the 1989 burglary offense which was consistent only with the statutorily prescribed punishment for a first degree burglary conviction.   In contrast, the information charging defendant with the 1990 second degree burglary offense alleged that defendant had entered “a garage.”   The plea form for the 1990 burglary offense contained defendant's acknowledgement that he faced a prison term of 16 months, two years or three years for that crime.   This was the punishment for second degree burglary.

We cannot agree with defendant, on this record, that there are “many inconsistencies” in the documents offered by the prosecution to prove the prior conviction allegations.   The only inaccuracies were nonsubstantive errors on the face of the abstract of judgment which were readily identifiable as errors in light of the other documentation.   These errors had nothing to do with the 1989 burglary conviction in question.   The abstract, information and plea form provided sufficient proof to support the trial court's finding that the 1989 burglary conviction was a serious felony conviction within the meaning of Penal Code section 1192.7, subdivision (c)(18).

CONCLUSION

The judgment is affirmed.

FOOTNOTES

1.   A police officer testified that the Hansen home was 2 or 3 miles away from the Gant/Miller home and in a different neighborhood, but the homeowners identified their location as the “Willow Glen” area.

2.   The original information contained three Penal Code section 496 counts, but the prosecution deleted one of these counts when it amended the information at the end of its case-in-chief.

3.   Defendant interchanges the question of the degree of the burglary conviction with the issue of whether the conviction was for a residential burglary.   The prosecution was not required to prove that defendant had suffered a first degree burglary conviction, although proof of such fact in this case would have been sufficient.  (People v. Cruz (1996) 13 Cal.4th 764, 784-785, 55 Cal.Rptr.2d 117, 919 P.2d 731.)   A burglary offense is a serious felony under Penal Code section 1192.7, subdivision (c)(18) if it was for “burglary of an inhabited dwelling․”   Proof of the degree of the offense is unnecessary.

4.   Defendant made evidentiary objections below, but he does not pursue them on appeal.

MIHARA, Associate Justice.

Cottle, P.J., and Bamattre-Manoukian, J., concur.