Filed 9/25/15 P. v. Rivera CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----

THE PEOPLE,

                   Plaintiff and Respondent,                                                 C072559

         v.                                                                      (Super. Ct. No. 12F00193)

ROGER GABRIEL RIVERA,

                   Defendant and Appellant.



         A jury convicted defendant Roger Gabriel Rivera of felony burglary and
misdemeanor battery on the mother of his children after he broke through doors to attack
the mother in her parents’ home. The trial court sentenced him to nine years in prison.
         Defendant now contends (1) the jury was improperly instructed that a person can
be convicted of the burglary of his own residence if he did not have an “unconditional
possessory right of entry”; (2) there is insufficient evidence to support his burglary
conviction; and (3) the California burglary statute violates the federal and state
constitutions to the extent it permits a burglary conviction for entry into one’s own
residence.
         We conclude the jury instruction accurately stated the law, substantial evidence



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supports the burglary conviction, and defendant’s constitutional challenge lacks merit.
We will affirm the judgment.
                                     BACKGROUND
       Defendant and Yazmin lived together off and on for about six and a half years,
sometimes at his parents’ house, sometimes at her parents’ house, and briefly in their own
apartment. But for most of the six months prior to the crimes, Yazmin and the couple’s
two young daughters lived with her parents, and defendant lived with his parents.
       Nonetheless, Yazmin’s father testified that he knew defendant would be staying
with Yazmin and the girls while the father and his wife spent three weeks in Mexico.
Defendant kept clothes, shoes and a blanket in the house and returned there each day after
work while Yazmin’s parents were gone. Yazmin had a key to the house but defendant
did not. She left the back door open for him and she sometimes left a key under the
doormat. A week before the crimes, Yazmin told defendant to leave. But she let him
return after a day or two.
       On the day of the crimes, Yazmin was upset because she suspected that defendant
had sexual contact with another woman. She confronted him and they fought. At the
preliminary hearing, Yazmin testified that defendant choked her, hit her and shoved her
against a wall. She said she grabbed a kitchen knife and barricaded herself in a locked
bedroom with the children and dialed 911. Defendant broke the bedroom door, entered
the bedroom and forcibly took her phone.
       At trial, Yazmin was a reluctant witness. When presented with a transcript of her
preliminary hearing testimony, she testified that defendant was angry because she told
him she cheated on him. She said he pushed her against a wall and slapped the back of
her head a few times. After she fell, he hit her body “like two more times.” Yazmin said
she took a knife from the kitchen to her parents’ bedroom, where the couple’s daughters
were sleeping, locked the door, and barricaded the door with a dresser. While she was
dialing 911, the door broke, the dresser slid and defendant started wrestling her for the

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telephone. Their daughters woke up and started crying. Defendant took Yazmin’s phone
and left. She locked the doors and called police from the house telephone. Yazmin
denied telling police that defendant strangled, punched and kicked her. Photographs of
her injuries were admitted into evidence, but she minimized the injuries.
        Yazmin testified that after the police left, she again locked the doors and began
the process of putting the children to bed. Moments later, Yazmin called 911 once more.
In a recording played to the jury, Yazmin told the operator defendant had beaten her up
and she and the children were frightened because he was trying to get back into the
house. Defendant shattered a sliding glass door and left again when the police returned.
One of the police officers who responded to Yazmin’s calls that night said he observed
bleeding cuts on her lips and cheek and swelling of both eyes. He also authenticated
photographs showing significant damage to the bedroom door and the sliding glass door.
        The jury found defendant guilty on count one of the lesser included offense of
battery on the mother of defendant’s children (Pen. Code, § 243, subd. (e)(1)),1 and on
count two of first degree residential burglary (§ 459). Defendant stipulated that he had
a prior conviction for felony burglary less than two years earlier and that he had violated
the terms of his probation. The trial court sentenced him to four years in prison (two
years doubled) for the burglary conviction plus a five-year sentence enhancement under
section 667 for the prior conviction. In addition, the trial court imposed a concurrent
120 day jail sentence for the misdemeanor battery conviction.
                                       DISCUSSION
                                              I
        Defendant contends the jury was improperly instructed that a person can be
convicted of the burglary of his own residence if he did not have an “unconditional




1   Undesignated statutory references are to the Penal Code.

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possessory right of entry.” He argues that the prosecution should have had to prove
defendant entered Yazmin’s parents’ house without the consent of someone who had
a possessory interest in the property superior to his own. Yazmin, he argues, had no
greater possessory interest in her parents’ home than he did because her rights were
equally conditioned on the consent of her parents. Defendant’s motions to dismiss before
and after the trial were based on the same argument, and before trial commenced, the trial
court explicitly found that defendant “never had an unconditional right to enter the
structure” but rather had been a temporary guest of the victim.
          Defendant did not object to the jury instruction. The failure to object to, or request
clarification of, an instruction forfeits a claim of instructional error. (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1191-1192.) We address this contention, however, because, under
the circumstances, an objection likely would have been futile. (See People v. Brown
(2003) 31 Cal.4th 518, 553 [no need to make futile objection].) In addition, defendant’s
substantial rights were arguably affected by the instruction. (See People v. Gray (2005)
37 Cal.4th 168, 235 [instructional error affecting substantial rights not forfeited by failure
to object].)
          The challenged instruction is set out below:
          “A person who enters a building or a room within a building with the intent to
commit a felony therein is guilty of the crime of burglary even though permission to enter
has been extended to him personally or as a member of the public.
          “Conversely, a person cannot be convicted of burglary if:
          “1. He had an unconditional possessory right to enter as the occupant of that
building, or room within that building; or
          “2. He was invited in by the occupant who knows of and endorses the felonious
intent.
          “Thus, a person cannot burglarize his or her own home as long as he or she has an
unconditional possessory right of entry.

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       “An unconditional possessory right is the right to exert control over the property to
the exclusion of others. Stated differently, it is the right to enter as an occupant of that
structure at any time. It is an absolute right to enter that cannot be conditioned on the
consent of another.
       “The People have the burden of proving beyond a reasonable doubt that the
defendant did not have an unconditional possessory right to enter a building, or room
within a building. “
       Defendant bases his argument against the instruction primarily on People v. Gauze
(1975) 15 Cal.3d 709 (Gauze). In that case, a man argued with a cotenant of his
apartment, then left and returned with a gun. (Id. at p. 711.) Although the man entered
the apartment intending to shoot his roommate, his burglary conviction was overturned.
(Id. at p. 714.) Examining the history of California’s burglary statute, the California
Supreme Court concluded that “burglary law is designed to protect a possessory right in
property, rather than broadly to preserve any place from all crime.” (Id. at p. 713.) The
statute is “aimed at the danger caused by the unauthorized entry itself,” including the risk
that the intruder will harm the occupants while carrying out the crime or escaping and the
risk that the occupants will react violently in anger or panic, inviting more violence. (Id.
at p. 715.) In contrast, the court observed, the entry of a person into his own home does
not similarly engender panic, so burglary should not apply, even if the person had a
felonious intent. (Id. at pp. 715-716 [noting the absurdity of convicting someone of
burglary for walking into his own home intending to forge a check or administer a dose
of heroin but changing his mind].) Noting that the gun-toting roommate had an absolute
right to enter his own apartment even for a felonious purpose, then, the court in Gauze
concluded that a “defendant cannot be guilty of burglarizing his own home.” (Id. at
p. 714.)
       Defendant argues he merely entered his own home and the jury instruction at issue
should not have allowed the jury to find him guilty of burglary unless it also found that

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Yazmin’s parents had restricted his right of entry or had explicitly delegated the authority
to do so to Yazmin. He describes himself as a resident of the house and he describes his
property right as a joint tenancy at will, subject only to the consent of Yazmin’s parents.
He argues that he could not be guilty of burglary because Yazmin’s father did not
withdraw consent to his tenancy and Yazmin locking him out was merely a “temporary
spike” in a series of “mutual domestic spats.”
       Contrary to defendant’s suggestion, the evidence in this case does not establish
that defendant had a tenancy at will for the subject property. In addition, we do not
consider on appeal allegations of fact and conclusions of law that are not supported by
evidence in the record and pertinent legal authority. (Cal. Rules of Court,
rule 8.204(1)(C); In re S.C. (2006) 138 Cal.App.4th 396, 409.) Accordingly, we reject
defendant’s unsupported contention that only Yazmin’s father (who was out of the
country) had the right to exclude him. We also reject the unsupported and conclusory
statement in defendant’s opening brief that he had unlimited possessory rights to the
house because all of his personal possessions were there and he had no other residence.
       Burglary is a breach of possessory rights, so a defendant’s entry into an occupied
structure with the intent to commit a felony inside meets the definition of burglary unless
the defendant “(1) has an unconditional possessory right to enter as the occupant of that
structure or (2) is invited in by an occupant who knows of and endorses the felonious
intent.” (People v. Salemme (1992) 2 Cal.App.4th 775, 781.) As we have said, the jury
instruction quoted this rule and added the caveat from Gauze, supra, 15 Cal.3d at p. 714,
that a person ordinarily cannot be guilty of burglarizing his own home. The instruction
appropriately required the People to prove beyond a reasonable doubt that defendant did
not have an “unconditional possessory right to enter as the occupant.” Because evidence
about defendant’s status as a resident of the house was disputed, the jury was properly




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charged with determining whether or not the prosecution met its burden of proof.2
(See § 1126 [questions of fact are for the jury].)
        Defendant claims the language of the instruction referencing an “unconditional
possessory right to enter” was misleading because the People did not prove Yazmin had
authority to condition his right to enter the home. But there is also no evidence that
Yazmin’s father granted defendant an unconditional possessory right to the house.
Moreover, although someone ordinarily could not be convicted of burglary for forcibly
entering his own home, if there has been estrangement and spousal abuse and there is a
victim inside fearing for her safety, a burglary conviction will be upheld. (People v. Gill
(2008) 159 Cal.App.4th 149, 161.) Even in the face of mixed evidence about whether a
defendant was living with his wife when he broke down the door to her apartment, a
history of domestic violence together with evidence of the broken door and the wife’s
later-recanted statements to police were sufficient to uphold a burglary conviction.
(People v. Ulloa (2009) 180 Cal.App.4th 601, 604-610.) Defendant and Yazmin had a
long history of domestic violence and separations and her 911 call reflected genuine and
reasonable fear.
        The instruction accurately stated the applicable law and allowed the jury to
determine the extent of defendant’s possessory rights based on the evidence. There was
no instructional error.
                                              II
        Defendant also contends there is insufficient evidence to support his burglary
conviction.
        In assessing the sufficiency of evidence, we review the whole record in the light
most favorable to the judgment and apply the substantial evidence standard of review.




2   We discuss the evidence post in section II of this opinion.

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(People v. Davis (2009) 46 Cal.4th 539, 606.) In other words, we look for evidence that
is reasonable, credible and of solid value from which a rational juror could find the
defendant guilty beyond a reasonable doubt. (Ibid.) We do not re-weigh the evidence
or assess credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We will reverse
a judgment for insufficient evidence only if it appears that upon no theory is there
sufficient substantial evidence to support the verdict. (People v. Zamudio (2008)
43 Cal.4th 327, 358.)
       Although defendant and Yazmin had lived separately with their respective parents
for six months, Yazmin’s father allowed defendant to stay in the father’s home with
Yazmin while the father was away. Only Yazmin had a key and she controlled access to
the home. Yazmin’s father considered defendant a guest. On the night in question,
Yazmin found defendant at a neighbor’s house and confronted him angrily as he came
out of a bedroom with a girl; when she demanded that he “come home,” defendant
responded that he did not want to be with her and Yazmin left. Defendant followed,
entering Yazmin’s parents’ house through the unlocked back sliding glass door and
retrieving his cell phone charger from a bathroom. Yazmin confronted him and told him
to take his stuff or she was going to throw it out. We have already described what
happened next.
       There was sufficient evidence to support the jury’s finding that on the night in
question defendant did not have an unconditional possessory right to enter the property.
Regardless of any permission Yazmin’s father might have granted earlier, the jury
rationally could have concluded that defendant was a guest, not a tenant or resident
whose right to be in the house was equivalent to the owners. In any event, a finding of
burglary was supported by evidence that, in order to assault Yazmin, defendant broke
down a barricaded bedroom door and later smashed a locked sliding glass door. (See
People v. Abilez (2007) 41 Cal.4th 472, 509 [even though victim permitted the defendant,
her son, to be in her home, his reentry into her bedroom after they fought and she

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screamed supported a conviction for burglary as did his breaking into another locked
bedroom to steal electronics].)
                                             III
       Defendant further contends the California burglary statute violates the federal and
state constitutions to the extent it permits a burglary conviction for entry into one’s own
residence. He argues he had a reasonable expectation of privacy in Yazmin’s parents’
home under the Fourth Amendment of the United States Constitution and under article I,
section 13 of the California Constitution.
       Defendant’s argument fails because this case did not involve government intrusion
into defendant’s private spaces. Defendant acknowledges police had a right to respond to
Yazmin’s 911 call and to later arrest him for battery, but he claims the burglary
conviction somehow violated his “right to be secure in his home.” This argument is
entirely based on the premise that defendant had an interest in the home sufficient to give
him the right to break down its locked doors and assault the owners’ daughter, a premise
we have concluded the jury properly rejected.
                                      DISPOSITION
       The judgment is affirmed.



                                                        MAURO                 , J.


We concur:


      ROBIE                 , Acting P. J.


      BUTZ                  , J.




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