THE PEOPLE v. ALLEN VOIGHTMAN (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FACTUAL AND PROCEDURAL BACKGROUND

On July 8, 2010, appellant Allen Voightman was heard rummaging in the detached garage of Kenneth Jones.   Finding the lock on the garage door damaged, Jones pried open the door with a crowbar and demanded that Voightman get out.   When Voightman reached the entrance to the garage, Jones grabbed him and threw him to the ground.   They fought, then Voightman broke away and ran.   Jones and a neighbor pursued and eventually captured him.

When advised that he was being arrested for burglary, Voightman at first denied having entered Jones's garage (before anyone had mentioned anything about a garage) then said he had entered the garage to find a jack to help someone with a flat tire.

Voightman was charged with one count of first degree burglary (Pen.Code, § 459),¹ with an allegation that the burglary qualified as a violent felony because another person was in the residence (§ 667.5, subd. (c)(21)).   The information alleged Voightman had suffered six prior convictions, the first in 1983, three for serious or violent felonies within the meaning of the Three Strikes law (§§ 667, subds.(b)-(i), 1170.12);  had served several prison terms;  and had not remained free of custody for a period of five years after the last incarceration (§ 667.5).   Voightman pleaded not guilty.

Voightman offered no evidence at trial.   A jury convicted him of first degree burglary and it was found after a court trial that allegations of five prior convictions, three of them strikes, were true.

At sentencing, the court denied Voightman's request to dismiss a strike finding and sentenced him to 25 years to life pursuant to the Three Strikes provisions, plus 10 consecutive years (two five-year terms;  § 667, subd. (a)), plus four consecutive one-year terms (§ 667.5, subd. (b)).  It assessed a $40 court security fee (§ 1465.8, subd. (a)(1)) and a $40 criminal conviction fine (Gov.Code, § 70373), imposed a $200 restitution fine (§ 1202.4, subd. (b)), and imposed and suspended a $200 parole revocation fine (§ 1202.45).   The court awarded Voightman 271 days of presentence custody credit.

Voightman filed a timely appeal.   We appointed counsel to represent him on appeal, and after examination of the record counsel filed an opening brief raising no issues and asking this court to independently review the record.   On May 23, 2011, we advised appellant he had 30 days within which to personally submit any contentions or issues he wished us to consider.

Appellant filed a supplemental letter brief in which he contends (1) the court trial on his priors was improper because the court did not possess a probation report;  (2) the reporter's transcript is incomplete;  (3) his attorney provided ineffective assistance;  and (4) insufficient evidence supported his burglary conviction.

DISCUSSION

A. Probation Report

Appellant contends the trial court did not possess a probation report at the time of sentencing, as required by the California Rules of Court.   This failure, appellant argues, violated his due process right to a fair trial by hampering the court's ability to give proper weight to a prior robbery conviction.

Examination of the reporter's transcript reveals that the court possessed a probation report at sentencing.   Although at the first hearing on October 12, 2010, the court noted it did not have a probation report, at the continued hearing on November 4 the court indicated it had reviewed the “EDP” (Early Disposition Program) report and was ready to proceed with sentencing.   An EDP report is a full report prepared by the probation department for use at sentencing.

B. Reporter's Transcript

Appellant contends he was provided an incomplete reporter's transcript, in that several times the reporter “interrupted and cut off” testimony.   We have reviewed the transcript and find nothing irregular.   Appellant apparently reads the reporter's use of two hyphens (- -) to indicate omitted testimony.   It does not.   Two hyphens indicate the speaker interrupted his or her thought or was interrupted by someone else.

C. Ineffective Assistance

Appellant contends his counsel provided ineffective assistance by (1) refusing to call appellant's probation officer, who would have testified to appellant's pattern of good behavior;  (2) representing to appellant that he need not testify because the trial would probably result in a hung jury;  (3) failing to object when the prosecutor interrupted Jones's testimony to confer with him in the hallway;  (4) failing to impeach Jones;  and (5) failing to investigate.

A claim that counsel was ineffective requires a showing by a preponderance of the evidence of objectively unreasonable performance by counsel and a reasonable probability that but for counsel's errors, the defendant would have obtained a more favorable result.  (In re Jones (1996) 13 Cal.4th 552, 561.)   The defendant must overcome presumptions that counsel was effective and that the challenged action might be considered sound trial strategy.   (Ibid.) To prevail on an ineffective assistance claim on appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.  (People v. Majors (1998) 18 Cal.4th 385, 403.)  “[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant․  If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”  (Strickland v. Washington (1984) 466 U.S. 668, 697;  accord, In re Fields (1990) 51 Cal.3d 1063, 1079.)

1. Failure to Call Appellant's Probation Officer

Appellant contends his parole officer's testimony would have demonstrated his “good behavior pattern,” and his attorney's refusal to call the parole officer constituted ineffective assistance of counsel.   Appellant neither specifies to what behavior his parole officer could have attested nor explains why he could not have presented evidence of good behavior without the parole officer's assistance.   He therefore fails to demonstrate by a preponderance of the evidence that lack of the parole officer's testimony prejudiced him.

2. Wrong Prediction of a Hung Jury

Appellant declares his attorney predicted—wrongly, as it turns out—that the jury would not be able to reach a verdict.   He contends the faulty prediction shows his attorney was incompetent and provided ineffective assistance.   We reject the argument.   Failure accurately to predict a jury decision is not itself an indicator of incompetence or ineffectiveness.

3. Failure to Object to Witness Coaching

During trial, Jones testified that in the initial scuffle with appellant he felt a pinch on his leg and speculated appellant stuck him with a screwdriver.   Appellant then broke loose and ran, but Jones pursued and ultimately apprehended him.   At this point in the testimony the court granted the prosecutor's request to confer with Jones in the hallway.   When direct examination resumed, Jones continued his narrative but presented little if anything new.   Direct examination concluded minutes later.

Appellant contends his attorney's failure to object to the prosecutor “counsel [ing]” the witness constituted ineffective assistance.   Having examined the record we find no indication that the prosecutor coached the witness or committed any other impropriety.   Jones's narrative before and after the short recess was essentially seamless, his testimony after the recess adding little that was new.   Appellant offers no suggestion to the contrary.

4. Failure to Impeach Jones

Appellant contends his attorney's failure to impeach Jones's testimony constituted ineffective assistance of counsel.   At the preliminary hearing Jones testified that when he returned home after appellant was arrested he found appellant's backpack in the neighbor's garage.   At trial, however, Jones testified he found the backpack in his own garage.   Appellant argues that exposing the discrepancy “would [have] shed the true light on the incident, in letting the jury realize that [appellant] accidently placed himself in a bad position, by trying to help a motorist with a flat tire ․, and that appellant had a necessity need [sic] of a tire jack and did not know this type of crime was taking place.”

The argument is without merit.   First, the minor discrepancy between Jones's preliminary hearing and trial testimony would have provided little or no basis to impeach his substantive testimony.   Appellant's attorney could rationally have decided that the benefit of exposing the discrepancy would be outweighed by the detriment of highlighting to the jury that physical evidence placed appellant at the scene of the crime.

Second, the discrepancy in Jones's testimony in no way supported a necessity defense.   Even if it did, the defense would not have been viable.   To justify an instruction on necessity there must be evidence to establish that appellant violated the law to prevent a significant evil, with no adequate alternative and without creating a greater danger than the one avoided.  (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.)   But the status of a stranded motorist is not a significant evil, adequate alternatives to theft exist to assist stranded motorists, and theft from a residence creates the greater danger.

5. Failure to Investigate

Appellant contends his attorney provided ineffective assistance by failing to hire an investigator to determine what exactly was in the backpack he left in Jones's garage or who had “moved his things around.”   But as he offers no suggestion how such an investigation would have assisted him (and we can conceive of none), the argument is rejected.

6. Prejudice

It does not appear appellant's counsel provided ineffective assistance.   Nor is it reasonably probable a different result would have been achieved had appellant's counsel done any or all of the things appellant now argues he should have done.   Accordingly, we reject appellant's ineffective assistance of counsel claim.

D. Burglary

Appellant contends that because Jones's residence was an apartment on the second floor, sitting over separate garages that are on the ground floor, which had a separate entrance outside and could not be accessed directly from the upstairs room, insufficient evidence supported his conviction for burglary in the first degree (§ 460, subd. (a) [burglary of an inhabited dwelling house] ).   He argues he should have been convicted at most of burglary in the second degree (§ 460, subd. (b) [burglary of a non-residence] ).   The argument is without merit.

“ ‘In determining whether a structure is part of an inhabited dwelling, the essential inquiry is whether the structure is “functionally interconnected with and immediately contiguous to other portions of the house.” ’  ‘ “Functionally interconnected” means used in related or complementary ways.  “Contiguous” means adjacent, adjoining, nearby or close.’ ”  (People v. Thorn (2009) 176 Cal.App.4th 255, 262, citations omitted.)   Even a garage at the rear of a shared duplex that is not accessible from either residence and can be entered only though an exterior door has been found to be functionally interconnected to the residence.  (In re Edwardo V. (1999) 70 Cal.App.4th 591, 594–595.)

In People v. Thorn, supra, the defendant was convicted of burglary in the first degree for entering for the purpose of theft a ground floor carport above which were four floors of apartments.   There was no direct access route between the apartments and the carport.   Instead the apartments were accessed via stairways from the carport area to the upper floors and then along walkways to each apartment.   The court held that a garage or carport-type structure not normally considered part of the living space is nevertheless functionally connected to the dwelling for purposes of the burglary statutes.  (176 Cal.App.4th at p. 263.)

Here, Jones's garage on the ground floor was functionally interconnected with his apartment above.   Appellant was thus properly convicted of burglary in the first degree.

CONCLUSION

We have examined the entire record and are satisfied that appellant's counsel has fully complied with the responsibilities set forth in People v. Kelly (2006) 40 Cal.4th 106, 109–110 and People v. Wende (1979) 25 Cal.3d 436, 441.   No arguable issues exist.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All undesignated statutory references are to the Penal Code..  FN1. All undesignated statutory references are to the Penal Code.

ROTHSCHILD, Acting P. J. JOHNSON, J.