Filed 2/25/14

                          CERTIFIED FOR PUBLICATION


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                   E058521

v.                                                  (Super.Ct.No. FSB1205275)

ROBERT WAYNE HARRIS,                                OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of San Bernardino County. William Jefferson

Powell IV, Judge. Affirmed.

        Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Parag

Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.




                                            1
       A jury found defendant and appellant Robert Harris guilty of first degree burglary

(Pen. Code, §§ 459, 460 subd. (a); Count 1)1 with the enhancement that a person other

than an accomplice was present in the residence (§667.5, subd. (c)(21)).2 The special

allegation rendered the burglary a violent felony. The trial court sentenced defendant to

the middle term of four years in state prison.

       Defendant concedes first degree burglary but contends that no other person was

present because the unoccupied guest area he entered does not provide access to the

occupied main residence. Finding the argument unpersuasive, we affirm.

                      FACTUAL AND PROCEDURAL HISTORY

       The victim was awakened shortly before midnight by the familiar creaking sound

of his screen door being opened. The victim’s wife, who was lying awake, also

recognized and reacted to the sound. The victims had their bedroom window open to get

a breeze and could easily hear the door, which was about three feet away. Their bed was

oriented such that their heads were under the window; they could see the intruder from

their bed.

       The screen door led to a converted garage used by the victims as a guestroom,

containing “a bed, couch, and washroom.” The victim saw the intruder standing

approximately two feet into the room, but scared him away by telling his wife, “Hand me

       1   All further statutory references are to the Penal Code unless otherwise indicated.

       2  The enhancement statute defines a “violent felony” as including “[a]ny burglary
of the first degree, as defined in subdivision (a) of section 460, wherein it is charged and
proved that another person, other than an accomplice, was present in the residence during
the commission of the burglary.” (§ 667.5, subd. (c)(21).)


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the gun.” The victim’s wife then went to the kitchen to call 911. After the police arrived,

defendant was located in bushes near the victims’ residence; he was arrested. At trial,

defendant disputed the reliability of his identification by the victim as the intruder.

                                       DISCUSSION

       Defendant contends the evidence presented at trial was insufficient to support the

jury’s finding he committed first degree burglary with a person present. After the

conclusion of the People’s case, defendant moved to dismiss the special allegation,

arguing there was no evidence the guesthouse itself was occupied and no evidence the

main house could be accessed from the guesthouse. The trial court denied the motion.

       Defendant presents the question as a lack of substantial evidence; however, his

argument is that the undisputed evidence is insufficient as a matter of law to support the

enhancement pursuant to section 667.5, subdivision (c)(21). The legal sufficiency of

undisputed evidence to support a conviction is a question of law, which we review de

novo. (People v. Villalobos (2006) 145 Cal.App.4th 310, 315, fn.3; People v. Groat

(1993) 19 Cal.App.4th 1228, 1231.) The fact the victims were present in their bedroom

is not disputed, and neither is the sufficiency of the evidence supporting the burglary

conviction. Only the legal issue of whether the victims’ presence satisfied the burglary

special circumstance is contested.

       The record refers to the burglarized room in a variety of ways. The victim’s

testimony described the room as a “part of [his] house,” and a room “for people to stay,”

“a guest room.” He also referred to it as “not just part of the house,” “[b]ecause . . . you

cannot go through the house into that room from indoors.” The victim’s wife referred to


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it as both a “guest house” and a “guest room.” During her 911 call, the victim’s wife

stated the intruder entered “the side door that would lead to the house,” and “the garage

that’s . . . in the house is a guest room. That’s normally where my husband and I stay.”

Although matters such as habitability are viewed through the eyes of the persons with a

possessory right to the dwelling (People v. Aguilar (2010) 181 Cal.App.4th 966, 970;

United States v. Lavender (4th Cir. 1979) 602 F.2d 639, 641), the words used by the

victims to describe the room, however, do not determine whether it is part of the

residence.

       A structure is part of a dwelling if it is functionally interconnected with and

immediately contiguous to other portions of the house. (People v. Rodriguez (2000) 77

Cal.App.4th 1101, 1107.) A functionally interconnected structure is one used in related

or complementary ways, and a contiguous structure must be adjoining or nearby. (Ibid.)

In the instant case, the guest quarters were physically attached to the main residence,

were covered by the same roof, and had been used on occasion by the victims as their

bedroom. The room lacked cooking facilities, which made it dependent upon the rest of

the house. In construction and use, the guestroom was a part of the main residence.

       There was no direct access from the victims’ guestroom to the main house; they

shared an internal wall but no interior door connected them. Defendant asserts that this

means, at most, that he burglarized an inhabited dwelling, but he did not enter a residence

where a person was present. Defendant cites People v. Singleton (2007) 155 Cal.App.4th

1332 (Singleton) for the proposition that the mere presence of another person beneath the

same roof does not satisfy the requirement of the special circumstance where there is no


                                              4
way for that person to access the main residence without exiting the building. Because an

unbroken interior wall separated the two areas, defendant contends they are like separate

units in an apartment house.

       Singleton concerned the burglary of an apartment where the unit’s occupant was

present in the common area hallway of the building, but was not in the unit. The victim

waited outside his apartment watching to see if an ex-roommate would emerge with

stolen items. (Singleton, supra, 155 Cal.App.4th at p. 1336.) Although the victim was

underneath the roof that covered his home, he was held not to be present in the residence.

(Id. at p. 1339.) Singleton is not persuasive; the victim was in a common area, not within

the area of his exclusive tenancy and control. Here, unlike in Singleton, there was no

failure by the victims to “cross[] the threshold or otherwise pass[] within the outer walls

of the house, apartment, or dwelling place being burglarized.” (Id. at p. 1337.) The

victims were present in their residence. The existence of an interior separating wall does

not place them “outside” of their home.

       There is no requirement of an interior connecting door before a room such as a

garage may be treated as part of a residence. A garage sharing a roof and a wall with a

residence is part of an inhabited dwelling even though there is no interior access.

“Simple logic would suffer were we to leap over this interrelationship to a conclusion that

a garage is not part of a dwelling because no inside entrance connects the two.” (People

v. Moreno (1984) 158 Cal.App.3d 109, 112.) This is true even for multi-unit structures.

(People v. Eduardo V. (1999) 70 Cal.App.4th 591, 594.)




                                             5
        The victims were present in their home when defendant burglarized their

guestroom. Although they had some protection from immediate danger because of the

lack of an interior connecting door, there was an intruder in their home who had entered

their dwelling just feet from where they slept. At that point the victims had to choose

between submitting to the crime or taking the risk of a violent confrontation in their

home.

        “‘Burglary laws are based primarily upon a recognition of the dangers to personal

safety created by the usual burglary situation—the danger that the intruder will harm the

occupants in attempting to perpetrate the intended crime or to escape and the danger that

the occupants will in anger or panic react violently to the invasion, thereby inviting more

violence. The laws are primarily designed, then, not to deter the trespass and the

intended crime, which are prohibited by other laws, so much as to forestall the

germination of a situation dangerous to personal safety.’” (People v. Gauze (1975) 15

Cal.3d 709, 715, quoting People v. Lewis (1969) 274 Cal.App.2d 912, 920.) The risks

arising from burglary are greater when a resident is present, as here, justifying the

additional sanctions found in section 667.5, subdivision (c)(21).

        Defendant argues that Singleton, supra, holds that “residence” cannot be equated

with the term “inhabited dwelling house,” which has a broader meaning, and that he

posed the same degree of threat to the victims whether he was in their guest quarters or

just outside their bedroom window. As noted ante, the distinctions material in Singleton

are not present here. The residents were within the “outer walls” that enclosed the garage

whether or not there was an interior connecting door. Likewise, defendant’s view of the


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victims’ proper level of response to his guestroom burglary is not dispositive: the law

states that a burglary committed while a person is present in the residence is a particularly

serious crime.

       Because we conclude that the privacy and safety interests involved in the sentence

enhancement for burglary of an occupied residence extend to rooms that do not offer

direct access but adjoin, share a common roof, and are functionally connected, we affirm

imposition of the sentencing enhancement under section 667.5, subd. (c)(21), finding that

the burglary took place with a person other than an accomplice present.

                                       DISPOSITION

       The judgment is affirmed.

       CERTIFIED FOR PUBLICATION



                                                         MILLER
                                                                                           J.


We concur:


McKINSTER
                       Acting P. J.


RICHLI
                                  J.




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