PEOPLE v. SHARPER (1987)

Vinnie Sharper, Jr. (appellant) was found guilty by jury of one count of grand theft, nine counts of burglary and one count of petty theft with a prior.   He was sentenced to state prison to a total term of six years.   However, due to a finding that appellant was in imminent danger of being addicted, the execution of sentence was suspended and appellant was committed to the California Rehabilitation Center for treatment.  (Welf. & Inst. Code, § 3051.)

Appellant's chief contention on appeal is that the evidence was insufficient to support the burglary convictions;  he also alleges instructional, procedural and sentencing errors.

The relevant facts leading to appellant's trial and conviction follow.

The Taylor Incident (Counts I and II)

Carl Taylor, the first victim listed in the information, testified that on June 21, 1985, he lived together with his grandson, Tony, at 2424 Bush Street, Richmond, California.   On that day appellant, accompanied by Tony, came into the house to sell parts for Tony's 1966 Chevrolet Chevelle.   Taylor remembered that appellant had been around the house some four to six weeks earlier trying to sell a seat and a starter for the Chevrolet.   This time they struck a bargain:  appellant agreed to sell a bumper and starter for the sum of $25.   The price for the bumper alone was $20.

Appellant, who claimed to be a fireman working for the Richmond Fire Department, suggested they drive over to his place to pick up the parts.   After writing down his name and telephone number on a piece of paper, appellant left the house and the group (appellant, Taylor and Tony) drove in Taylor's car to 21st and McDonald in Richmond.   Appellant got out of the car and went toward a house to obtain a key to the garage where the parts were allegedly located.   Shortly afterward, appellant returned and asked for $20 in advance.   When Taylor refused and started to put his money back in his wallet, appellant grabbed the money together with the wallet and fled.   Taylor lost between $45 and $55 and never received any parts nor his money back from appellant.

The Bredemeier Burglary (Count III)

Valerie Bredemeier (Valerie) resided at 611 Western Drive, Richmond.   On March 13, 1985, she saw her son, Jim, talking to appellant who was introduced to her as Steve.   Valerie learned from Jim that appellant was offering car parts for sale for approximately $40.

On March 16, 1985, appellant returned.   After knocking on the door and stating his business, appellant was invited to enter the house.   While inside, appellant mentioned that he had talked to Jim to sell parts for his Capri for $40 and that he wanted to deliver them.   When Valerie replied that Jim was not at home at the present time, appellant asked if she could pay for the parts on behalf of her son.   Valerie first offered to give him a check.   When appellant declined, she gave him $15 for a deposit.   While in the house, appellant pocketed the cash.   Shortly thereafter, he left the house in order to get the parts.   Valerie never received the parts, nor did she see appellant until the trial.

The Hansen Burglary (Count IV)

David Hansen, the next victim, was also a Richmond resident living at 1827 Garvin Avenue.   On March 29, 1985, he was approached by appellant while he was washing his 1972 Vega in front of the house.   Appellant introduced himself as Steve, a fire department employee.   He indicated that he had a Vega that had been wrecked and offered to sell Hansen a bumper and fender for $60.   Hansen showed interest in buying, but asked appellant to call him later.

After speaking with Hansen's wife on the telephone, appellant came over later that evening at around 7:30 p.m.   Appellant was invited inside the house to talk over the details of the deal.   Hansen gave $60 to appellant in the house and thereafter, according to his instructions, drove appellant to various places in Richmond to locate the merchandise.   Eventually appellant got out of the car and went into a house or apartment, pretending to pick up the parts.   Hansen waited in his car at Bissell and 17th Avenue for approximately two hours.   On starting to go home, Hansen by accident ran into appellant who looked rather surprised.   After giving some explanation and allaying Hansen's suspicion, appellant got in the car and returned to the Hansen house.   While inside the house, appellant swindled the Hansens out of an additional $20.   Hansen then drove appellant to another location.   This time appellant disappeared for good never returning with either the car parts or the money.

The Sweatt Burglary (Count VI)

Bill Sweatt lived at 6628 Lincoln Avenue in El Cerrito.   At about 5 p.m. on June 11, 1985, appellant knocked on his door.   He offered parts for Sweatt's 1971 Monte Carlo claiming that he owned an identical car which had been wrecked earlier.   He was asked to come in to discuss the matter further.   After some bargaining Sweatt agreed to buy a front bumper for $50.   Pursuant to the arrangement, Sweatt was to give a $20 retainer, the balance being due on delivery of the bumper.   Appellant represented that the parts were located about a block away.   The parties then took off in Sweatt's car to get the parts.   While walking towards appellant's supposed residence, Sweatt, according to the prearranged plan, gave appellant $20 in advance payment.   On pocketing the cash, appellant made off leaving Sweatt waiting outside the building.   After a wait of about 15 minutes, Sweatt realized that he had been taken and left for home.   He never saw either the bumper or his money thereafter.

The Roque Burglary (Count VII)

John Roque testified that on October 16, 1985, he resided together with his wife, Kathleen, at 711–30th Street, Richmond, and that at about 7:15 p.m., appellant knocked on his door and offered to sell car parts for his Mazda RX7 vehicle.   Appellant stated that he lived in the neighborhood;  that he had totalled his own RX7 in an accident;  and that he had seat covers and a mask (bra) for sale.   Mr. Roque indicated he was interested in buying only a mask but suggested appellant drop by some other time.

Two days later, on October 18, 1985, appellant showed up at the Roque residence again.   He found at home only Kathleen whom he advised about the previous conversation between her husband and himself.   Thereupon, Kathleen invited appellant into the house.   After staying there for about five minutes, appellant agreed to sell the mask for $20.   Kathleen first offered him a check, but when appellant refused, she gave him $20 in cash.   The money for the part was given to appellant inside the house.   Following receipt of the cash, appellant left to pick up the mask from his car which was allegedly parked across the street.   Appellant never returned.

The Mahley Burglary (Count VIII)

Beverly Mahley (Beverly) lived at 636 Kern Street, Richmond.   On October 24, 1985, at about 5:30, she was visited by appellant who offered to sell parts for her 1969 Volkswagen.   Appellant stated his name was Tony;  he had a similar Volkswagen that had been wrecked;  and he had parts (seats, fender and mask) for sale for $30–$40.   Beverly invited appellant inside the house and wanted to give him a check.   Since appellant hesitated to accept a check, Beverly called up her son Tom to loan her the cash.

Tom came over to his mother's house at around 8:30 p.m. the same evening, followed by appellant who arrived there a little after 9 p.m.   While talking to Tom inside the house, appellant indicated that he had also a smog device plus some other parts for sale, all for the original price of $40.   Tom accepted the offer and gave appellant a ride to his apartment.   At 4th and McDonald, appellant got out of the car to obtain the keys to the garage where the parts were allegedly kept.   Appellant then stated that he did not want his wife to know he was selling the parts so cheap and therefore asked Tom to give him $100 in advance which appellant would show to his wife, then come back and return Tom $60.   Tom complied, gave him $100 and, as in all the previous instances, appellant then disappeared.

The Bates (True) Burglary (Count IX)

Doris Bates (Doris) testified that on November 12, 1985, she was at the residence of her daughter, Brenda True, who lived at 618–36th Street, Richmond.   At about 4 p.m., appellant knocked on the door and asked who owned the 1977 Dodge station wagon parked outside.   Appellant stated he had a similar wagon which had been in an accident and offered to sell a front bumper for $20.   He indicated that his name was Tony and that he worked for the city fire department.   Upon Doris' invitation, appellant entered the residence and stayed there for about 10 minutes.   While inside, appellant wrote down a false name and false telephone number on a piece of paper and received $20 from Doris.   The two of them then went to appellant's home ostensibly to pick up the car part.   They actually drove to several places, and eventually appellant swindled $20 more out of the victim on the pretense that he wanted to show the money to his wife, but would give it back to Doris upon his return.   Encouraged by the apparent gullibility of Doris, appellant made yet another attempt to extract a further sum from her.   When the latter effort failed, appellant took off for good.

The Jordan Burglary (Count X)

The next victim, Regina Jordan (Regina), was also a Richmond resident living at 133 South Ninth Street.   In November of 1985, appellant came to her house and talked to her mother offering her car parts (louvers, seat covers) for sale.   A few days later appellant, posing as a fire department employee, came back and repeated his offer to Regina.   Regina invited him in the house where they worked out the details of the deal.   He lowered the asking price from $100 to $40 and they agreed that Regina would pay him only a few days later when she received her salary.   On November 16, 1985, the company's pay day, appellant called up Regina and asked her to come to pick up the parts at an address on Bissell where allegedly his mother lived.   Appellant asked for the $40 they agreed upon in Regina's house earlier and Regina complied.   Soon after appellant was gone never to be heard from again.

The Evans Burglary (Count XI)

Enid Evans (Enid), the last of the victims, resided at 436–41st Street, Richmond.   On November 21, 1985, at about 1:40, appellant approached her with an offer to sell parts for her Mercury Capri.   He introduced himself as Tony working for P.G. & E. in Richmond and represented that he had several parts of his smashed-up Capri.   Enid showed interest in the starter only, but wanted to talk it over with her husband before buying.

A few minutes later, appellant returned insisting on an instant deal.   After lowering the price from $35 to $20, Enid invited him in the house where he signed a receipt as Tony Shappel and was given $20 in cash.   Following the transaction, Enid and appellant walked down to appellant's car to pick up the starter.   However, appellant and the passenger in the car drove away and Enid never received either the starter or the money.

After having been identified by many of his victims, on January 25, 1986, appellant confessed to the Richmond police that he had completed car parts scams approximately 15 to 25 times.

On appeal appellant contends that judgment below should be reversed because:  (1) the evidence was insufficient to prove burglary;  (2) the trial judge committed prejudicial error by failing to give sua sponte, an instruction concerning the specific intent necessary to commit burglary;  (3) trial counsel's failure to request this specific jury instruction resulted in ineffective assistance of counsel;  and (4) appellant's motion to sever the several counts was erroneously denied.   In addition, appellant claims that (5) the imposition of sentence on count I (grand theft) and count II (burglary) violated the proscription against multiple punishment (Pen.Code,1 § 654)  Appellant's contentions are discussed seriatim.

I. Sufficiency of Evidence

Appellant first contends that his burglary convictions on counts II–IV and VI–XI ² cannot stand because the evidence fails to substantiate that he entered the dwellings of the victims with intent to commit theft (i.e., larceny by trick or false pretense) on the premises or their immediate vicinity (People v. Wright (1962) 206 Cal.App.2d 184, 191, 23 Cal.Rptr. 734;  People v. Nance (1972) 25 Cal.App.3d 925, 932, 102 Cal.Rptr. 266;  People v. Nunley (1985) 168 Cal.App.3d 225, 231, 214 Cal.Rptr. 82).   Appellant cites the fact that in some instances the money was paid by the victims outside their house and the fraudulent deals were consummated a considerable distance from the dwellings initially entered.   Appellant insists that in light of this evidence he could only be found guilty of theft but not burglary.   We disagree.

Burglary, at common law, was the breaking and entering of the dwelling house of another, in the nighttime, with intent to commit a felony therein (Reagan v. State (1967) 2 Md.App. 262, 234 A.2d 278, 281;  State v. Cook (1955) 242 N.C. 700, 89 S.E.2d 383, 385).   Common law burglary was explained as essentially an offense “against habitation and occupancy” (Perkins on Criminal Law (3d ed. 1982) p. 246).   By proscribing felonious nighttime entry into a dwelling house, the common law sought to protect the peaceful enjoyment of one's home from foreign intrusion (2 Blackstone, Commentaries (Jones ed. 1916) § 258 at p. 2430).

While preserving the spirit of the common law, the California burglary statute, codified in section 459, greatly changed the common law definition of burglary.   By providing that the entry of any house or protected structure with the intent to commit grand or petit larceny or any felony constitutes burglary,³ the statute:  (1) expanded the scope of buildings protected;  (2) abolished the breaking and nighttime requirements;  and (3) added intent to commit petit larceny (a misdemeanor) as an element.   Even more significantly, the statute omits the common law criterion that the entry be made with intent to commit larceny or any felony on the premises (i.e., “therein”).   While this omission may not be interpreted that the burglary statute intended to dispense with the requirement of a reasonable connection between the protected structure and the crime committed by the intruder (People v. Gauze (1975) 15 Cal.3d 709, 713, 125 Cal.Rptr. 773, 542 P.2d 1365),⁴ subsequent case law instructs us that it is no longer a prerequisite that the burglar actually intend to commit the proscribed crimes on the premises of the burglarized structure.   In relaxation of the strict common law requirement of “therein,” numerous cases both in California and elsewhere hold that burglary is committed if the entry in the house or other protected structure is made with the intent to commit larceny or any felony in a neighboring structure or place and/or if the entry and the commission of the crimes outside the structure constitute a continuous transaction.

For example, in People v. Wright, supra, 206 Cal.App.2d 184, 23 Cal.Rptr. 734, the defendant entered the office of a tire shop in order to steal tires from the attached shed.   Defendant argued that no burglary was committed for his intent was to perpetrate theft in the neighboring building, not in the one actually entered.   The court rejected his argument by emphasizing that case law has not followed the limited common law notion of burglary which requires that the defendant enter the premises with intent to commit a crime therein.   Analyzing a number of cases and legal authorities the court reached the following conclusion:  “the intent to commit larceny or any felony is not confined to an intent to commit the crime in the building which is entered if the intent at the time of entry is to commit the offense in the immediate vicinity of the place entered by defendant;  if the entry is made as a means of facilitating the commission of the theft or felony;  and if the two places are so closely connected that intent and consummation of the crime would constitute a single and practically continuous transaction.”  (People v. Wright, supra, at 191, 23 Cal.Rptr. 734;  accord:  People v. Nunley, supra, 168 Cal.App.3d 225, 231, 214 Cal.Rptr. 82;  People v. Guthrie (1983) 144 Cal.App.3d 832, 845, 193 Cal.Rptr. 54).

In People v. Nance, supra, 25 Cal.App.3d 925, 102 Cal.Rptr. 266, the defendant and others broke into an airport building to turn on the pumps so that they could steal gasoline from outside.   The defendant contended that the trial court erred in refusing to instruct the jury that the intent to steal necessary to commit burglary is the specific intent to steal from the premises actually entered.   The appellate court rejected this contention and, employing the rule set out in Wright, emphasized that no such instruction need be given since the consummation of the crime constituted a single, continuous transaction inasmuch as “The act necessary to the theft was to be performed within the premises.”  (People v. Nance, supra, at 932, 102 Cal.Rptr. 266.)

This notion of “continuous transaction” was carried one step further by People v. Dingle (1985) 174 Cal.App.3d 21, 219 Cal.Rptr. 707, a case even factually closer to the instant convictions.   In Dingle, the defendant was charged with burglary committed by entering the victim's home, placing a long distance telephone call to a Chicago bank and billing the charge therefor to the victim.   The court held that the commission of theft (i.e., larceny by false pretense) was sufficient to sustain the burglary even if only a part of the crime was committed on the burglarized premises and even if the completion of the offense occurred thousands of miles away.

The proposition that the perpetrator need not intend to commit the crime on the premises and that the burglary is perpetrated as soon as the underlying offense is initiated on the premises (even if completed elsewhere) is well supported by legal commentators and outside authorities.

Notably, Professor Perkins addressed the subject as follows:  “Some definitions of burglary, after listing the elements mentioned above, add with intent and so forth ‘therein’.   This wording emphasizes the necessary causal relation between the burglarious intent and the forced entrance, but seems to inject an unnecessary limitation.   While it would not be burglary to break into another's dwelling at night merely to rest in preparation for a felony to be perpetrated elsewhere, it would be burglary, if the purpose was to use the building as a place of concealment from which to shoot an enemy as he passed by on the street, although under well-recognized rules the situs of such a murder would be in the street at the point where the bullet hit the victim, and not the place inside the house from which the shot was fired.   Hence burglary was committed where it was necessary to break into the building to reach the property to be stolen, although such property was not actually within the building itself;  and also where the purpose was to commit a sexual offense in the seclusion available on the roof, which could be reached only by going through the house.”  (Perkins, On Criminal Law, supra, at 268–269;  fns. omitted:  accord:  People v. Wright, supra, 206 Cal.App.2d at 188, 23 Cal.Rptr. 734.)

Moreover, in State v. Arne (N.D. 1981) 311 N.W.2d 186, where the perpetrator entered a structure (a shed) with the intent to commit theft outside, the court upheld the burglary conviction by reasoning that the defendant broke and entered the shed to commit an essential act of the contemplated crime and that his conviction cannot be tainted solely because the subsequent finishing act was completed elsewhere (p. 189;  accord:  People v. Adams (1977) 75 Mich.App. 736, 255 N.W.2d 752, 753).

 When viewed in light of these authorities, the evidence at bench abundantly sustains burglary convictions on all counts.   The record clearly shows that in all of the counts appellant did actually enter the dwelling places of each victim.   While the entry took place upon the invitation of the victims, it is well settled that one who enters a room or a house with intent to commit theft or a felony is guilty of burglary even though the permission to enter was extended to him personally or the entry was by invitation.  (People v. Pendleton (1979) 25 Cal.3d 371, 382, 158 Cal.Rptr. 343;  People v. Sears (1965) 62 Cal.2d 737, 746, 44 Cal.Rptr. 330, 401 P.2d 938.)   This is so because the invitation or consent to enter is vitiated by the visitor's intent to commit larceny or felony on the premises (People v. Nunley, supra, 168 Cal.App.3d 225, 232, 214 Cal.Rptr. 82.)

The most essential element of burglary, i.e., intent to commit petty theft or any felony, is likewise amply supported by the record.   The evidence reveals that in five of the nine counts of burglary, appellant actually received the cash while inside the homes or apartments of the victims:  Valerie Bredemeier (count III) testified that she gave $15 deposit to appellant while he was inside the house;  the same is true with respect to the Hansen burglary (count IV) where appellant received $60 the first time and an additional $20 the second time while he remained in the house;  Kathleen Roque (count VII) likewise testified that at the end of the bargain she offered a check, but when appellant refused she gave him $20 while he was still on the premises;  Doris Bates (count IX) also paid the purchase price of $20 for the bumper inside her home;  and finally, Enid Evans (count XI) confirmed that the $20 cash was given to appellant in the house just before he left hurriedly down to his car and disappeared.

While in the remaining four instances the purchase price of the parts was paid to appellant outside the homes, it was a continual part of an agreement already concluded inside the house.   Thus, Carl Taylor (count II) testified that prior to June 21, 1985, appellant had been at the house and tried to sell parts to his grandson Tony;  on June 21, appellant did come into the house in Tony's company and the details of the deal (including the purchase price) were agreed upon while appellant was inside the home;  it was only the conclusion of the deal that occurred at the corner of 21st Avenue and McDonald when the money actually changed hands.   In the Sweatt burglary (count VI) the details of the bargain were also reached inside the residence;  and the payment of cash in the burglarized home's vicinity took place pursuant to the prearranged plan worked out inside the Sweatt residence.   In the Mahley burglary (count VIII), the payment of compensation outside the house was purely incidental.   The record shows that Beverly, Tom's mother, first offered appellant a check and the cash payment outside the house occurred only because appellant refused to accept the check;  furthermore, all the essential details of the contract were reached between appellant and Tom inside the home.   Finally, the Jordan burglary (count X) where the exchange of money also took place outside the residence, shows in a peculiarly convincing way that appellant entered the victim's premises with a strong determination to extract the money by means of false pretenses while there and if it did not happen exactly in that manner, such was merely accidental, not dependent on appellant's original design or intent;  for, appellant visited the Jordan residence first to talk to Regina's mother;  a few days later, he showed up again and came into the house where, this time, he talked Regina into the deal;  but on learning that Regina had no cash and was awaiting her pay day, appellant agreed to postpone payment until November 16th;  that day appellant, according to the terms of the agreement previously reached inside the Jordan residence, telephoned Regina and lured her to an outside place to complete the agreement;  thus, the focus of appellant's scheme was the victim's dwelling entered with a predeliberate fraudulent intent to deceive with the place of the actual parting with the money—either inside the house or elsewhere—being purely fortuitous and not dependent on appellant's original intent.

That the compensation for the parts whenever made was only a consummation of the deal struck inside the victim's homes and took place pursuant to a single larcenous intent is further demonstrated by appellant's argument with respect to his punishment for counts I and II.   In contending that in the Taylor incident the trial court violated the proscription against multiple punishment (§ 654) by imposing separate sentences for both the grand theft (count I) and the burglary (count II), appellant concedes as follows:  “It is apparent that appellant's entry into the house, accompanying the victim outside the house, and the snatching of the money was done pursuant to a single intent and objective.   Obviously the single intent was to obtain money from the victim.”   Needless to say appellant's candid admission that the theft was pursuant to a single intent and objective applies with equal force to the other contested counts as well.

 Finally, it bears emphasis that the underlying crimes evidencing the intent for burglary convictions were theft or larceny by trick or false pretenses (People v. Reinschreiber (1956) 141 Cal.App.2d 688, 696–697, 297 P.2d 658).   It is well settled that the elements of theft by false pretenses are:  (1) intent to defraud;  (2) actual fraud;  (3) use of false pretenses to perpetrate fraud;  and (4) reliance upon the fraudulent representation in parting with money or other property (Perry v. Superior Court (1962) 57 Cal.2d 276, 283, 19 Cal.Rptr. 1, 368 P.2d 529;  People v. Taylor (1973) 30 Cal.App.3d 117, 121, 106 Cal.Rptr. 216;  People v. Conlon (1962) 207 Cal.App.2d 86, 92, 24 Cal.Rptr. 219.)   While in order to prove theft by false pretenses all four elements must be shown, it is established that the time gap between the false representation and actual parting with money or property is not material.   This is so because both the statute and the case law regard the representation as continuing and therefore reliance may be established despite an interval of time if it is found that the false pretense operated on the victim's mind when the money or property was given (§ 484; ⁵  CALJIC No. 14.16 [4th ed. 1979]; ⁶  People v. Adams (1955) 137 Cal.App.2d 660, 671, 290 P.2d 944;  1 Witkin, Cal. Crimes (1963) § 412 at pp. 385–386).   In the case at bench, the record shows beyond any doubt that the misrepresentation by appellant in each and every case was continuous and that the victims relied upon such misrepresentations when they parted with their money either in their homes or outside the premises.   The doctrine of theft by false pretenses hence furnishes additional, independent ground to sustain the burglary convictions in all counts.

In sum, we hold that the mental element of burglary may be established even if the perpetrator does not intend to commit theft on the burglarized premises or in their vicinity as long as the transaction constituting the theft has been initiated on the premises, is continuous and carried out pursuant to a single intent or objective.   The evidence herein adequately supports this element of burglary.

II.–IV.**

Accordingly, the judgment at bench is modified so as to stay the execution of sentence on count I and so modified the judgment is affirmed.

FOOTNOTES

FN1. Unless otherwise indicated, all further statutory references are to the Penal Code..  FN1. Unless otherwise indicated, all further statutory references are to the Penal Code.

2.   Appellant does not dispute the validity of convictions on count I (grand theft) and count V (petty theft with a prior).

3.   Section 459 provides:  “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, ․ trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code when the doors of such vehicle are locked, aircraft as defined by the Harbors and Navigation Code, mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.   As used in this chapter, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.”  (Emphasis added.)

4.   In People v. Gauze, supra, 15 Cal.3d 709, 712–713, 125 Cal.Rptr. 773, 542 P.2d 1365, the Supreme Court stressed that “by carefully delineating the type of structures encompassed under section 459, the Legislature has preserved the concept that burglary law is designed to protect the possessory right in property, rather than broadly to preserve any place from all crime.”

5.   Section 484, subdivision (a) provides in relevant part:  “For the purposes of this section, any false or fraudulent representation or pretense made shall be treated as continuing, so as to cover any money, property or service received as a result thereof.”

6.   CALJIC No. 14.16 reads as follows:  “The fact that there may have been a period of time between the making of a false representation or pretense and the time when the person obtained the money or property of another is not controlling, if the effect of the false representation or pretense continued and was relied upon when the money or property in question was delivered.”

FOOTNOTE.   See footnote *, ante.

ANDERSON, Presiding Justice.

CHANNELL and SABRAW, JJ., concur.