Filed 10/22/15 P. v. Mosley CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140966
v.
DEMETRIUS MOSLEY,                                                    (Contra Costa County
                                                                     Super. Ct. No. 1217363)
         Defendant and Appellant.


         Defendant Demetrius Mosley was convicted of receiving stolen property and first
degree burglary with a finding that a person other than an accomplice was present during
the burglary.1 This finding elevated the burglary conviction to a violent felony within the
meaning of Penal Code section 667.5, subdivision (c)(21),2 the effect of which was to
limit defendant’s presentence custody credits to 15 percent of his actual credits. On
appeal, defendant contends this finding was erroneous because the burglary was
completed when he and his accomplice entered the residence, at which time no one else
was present. This claim lacks merit, and we affirm.
                                            EVIDENCE AT TRIAL
         On the morning of July 27, 2012, Masayo Engel left home to pick up her 15-year-
old son, Christopher, who was about five minutes away. They returned directly home.
When they arrived, they saw a silver Honda parked in front of their house.

         1
         The receiving stolen property conviction is irrelevant to the issue raised on
appeal, so we omit discussion of the facts surrounding that offense.
         2
             All statutory references are to the Penal Code.

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       Christopher got out of the car in the driveway, and Masayo backed her car into the
garage. Christopher entered the house through a door connecting the garage to the house.
He walked through the kitchen and then heard a noise so he walked into the hallway.
A man he did not know walked out of his father’s computer room. Upon seeing
Christopher, the man announced, “They’re back.” Christopher ran back out through the
garage, telling his mother to “run away” because there was someone in the house.
       As the Engels ran out of the garage onto the driveway, they saw two men coming
out of the house behind them. The men ran across the garage and into the backyard.
       The Engels ran to get help from a neighbor, and as they did so, Christopher took a
video of the car that was parked in front of their house, capturing the car’s license plate.
The neighbor was not home so they turned back towards their house. As they turned
back, they saw someone hiding in a bush across the street. A man came out from behind
the bush, and they recognized him as one of the men they saw leaving their house. He
asked, “Are you looking for someone?,” and then dashed to the silver Honda, jumped in,
and sped away.
       Christopher called the police, who traced the license plate in the video to a car
owned by Jennica Tran, defendant’s girlfriend. Tran had loaned her car to defendant that
morning and then given him and a friend a ride to Fremont that afternoon. Later that
same day, the police showed the Engels a photo lineup containing a photograph of
defendant. Masayo immediately identified a photograph of defendant as the man she saw
come out from behind the bush and get into the car. She also identified him at trial.
Christopher identified two photographs as possibly one of the men he saw coming out of
the house, although neither photograph depicted defendant.
       Items stolen from the Engels’ house were recovered two days after the burglary
behind a house in Fremont.
       By information filed October 11, 2012, defendant was charged with first degree
residential burglary (§§ 459/460) and receiving stolen property (§ 496, subd. (a)). The
information also alleged numerous special allegations, including that defendant



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committed the burglary while a non-accomplice was in the residence (§ 667.5, subd.
(c)(21)).
       Following a multi-day jury trial, defendant was found guilty on both counts.
       A court trial was held on the special allegations. As pertinent to defendant’s
contention on appeal, the court found true the special allegation that defendant committed
the burglary while a non-accomplice was in the residence and that, as a consequence,
defendant was only entitled to a 15 percent credit for earned presentence custody credits.
       The court sentenced defendant to 15 years in state prison, and awarded him 507
days of actual presentence custody credits and 76 days of earned credits (calculated at a
rate of 15 percent), for a total of 583 days.
       Defendant filed a timely notice of appeal.
                                       DISCUSSION
       First degree burglary is defined as burglary of an inhabited dwelling whether
occupied at the time or not. (§§ 459, 460, subd. (a); People v. Rodriquez (2004) 122
Cal.App.4th 121, 131–132.) Section 667.5, subdivision (c)(21) elevates first degree
burglary from a serious felony (§ 1192.7, subd. (c)(18)) to a violent felony if a person
other than an accomplice is “present in the residence during the commission of the
burglary.” (§ 667.5, subd. (c)(21); People v. Singleton (2007) 155 Cal.App.4th 1332,
1336–1337.) When a person has been convicted of a section 667.5, subdivision (c)
violent felony, section 2933.1 limits his or her presentence and postsentence conduct
credit to 15 percent of actual custody credits. (§ 2933.1, subds. (a), (c).) Defendant
contends the trial court’s finding here that the burglary was a violent felony subject to the
section 2933.1 credit limitation was improper because no one other than an accomplice
was present when the burglary was committed. This is so, he reasons, because the
burglary was committed the moment he and his accomplice entered the Engels’
residence, when no one else was present. Defendant’s argument lacks merit.
       No published authority has addressed the specific issue defendant raises. In other
contexts, however, courts have construed the offense there at issue as continuing
throughout the duration of the crime and, in some instances, until defendant reaches a


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“place of temporary safety.” Most apt is People v. Alvarado (2001) 87 Cal.App.4th 178.
There, defendant challenged the jury’s finding that he committed rape during the
commission of a burglary within the meaning of section 667.61, subdivision (e)(2), which
mandates an indeterminate life term for a defendant who commits a rape “during the
commission of a burglary.” Defendant theorized that a burglary is complete the moment
the perpetrator enters a structure with the intent to commit theft or any felony, such that a
rape committed after entering the premises did not occur during the commission of a
burglary. (People v. Alvarado, supra, 87 Cal.App.4th at p. 185.)
       Rejecting defendant’s view as “unreasonably narrow,” the Court of Appeal
considered the purpose of the statute, noting that it “reflect[ed] a legislative finding that
the victims of a residential burglary are more vulnerable because they are inside a
structure rather than out in public.” (People v. Alvarado, supra, 87 Cal.App.4th at pp.
186, 191.) Further, it noted that “in other legal contexts, the defendants have asserted the
view that a burglary is over upon entry, and courts have repeatedly rejected it.” (Id. at
pp. 187–188 and cases therein collected.) The court labeled as “patently absurd”
defendant’s contention that the statute applied only to sex offenses committed when the
burglar is in the process of entering a structure, as this construction would render the
enhancement for a rape during the commission of a burglary a virtual impossibility.
(Id. at p. 187.) The court thus held that for the purpose of section 667.61, subdivision
(e)(2), “during the commission of a burglary” referred to the period of time between the
burglar’s initial entry and the burglar’s escape to a place of temporary safety. (Id. at
p. 191.)
       People v. Taylor (1995) 32 Cal.App.4th 578, 582 is similarly instructive. There, a
homeowner returned home to find his front door open and defendant and his accomplice
outside the house. The homeowner called a neighbor and then detained the accomplice
while the neighbor pursued defendant. Defendant returned to the house with a firearm,
pointing it at the homeowner and demanding that he release the accomplice. Both
perpetrators were eventually apprehended. Among other things, defendant was convicted



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of burglary, with an enhancement for using a firearm during the commission of the
burglary. (Id. at pp. 579–580.)
       On appeal, defendant argued that there was insufficient evidence to support the
finding that he used a firearm during the commission of a burglary because there was
“ ‘no burglary . . . in progress’ ” when he confronted the homeowner with the firearm.
(Taylor, supra, 32 Cal.App.4th at p. 580.) The Court of Appeal disagreed, discussing a
series of cases in which courts have recognized that certain offenses did not terminate
until the perpetrator had reached a “place of temporary safety.” (Id. at pp. 580–581.)
Then, rejecting defendant’s contention, the court concluded that “for purposes of
applying a firearm use enhancement, theft crimes such as robbery, burglary, and
receiving stolen property continue beyond the time of the physical conduct constituting
the offense until the perpetrator has reached a place of temporary safety.” (Id. at p. 582.)
The court reached this result in part based on the rationale for the enhancement: “[T]he
Legislature endeavored to deter the use of a firearm on victims of burglaries and other
felonies. In such cases, escape is as important to the execution of the offense as is
obtaining the property in the first place. Moreover, the risk of injury to the victim during
the escape attempt is great.” (Ibid.)
       As in Alvarado and Taylor, the rationale for the section 667.5, subdivision (c)(21)
enhancement justifies construing the duration of a burglary as extending beyond the
initial moment of entry. The commission of a burglary while someone other than an
accomplice is present “plainly presents a potential for violence and consequently merits
enhanced punishment. [Citations.]” (Doe v. Saenz (2006) 140 Cal.App.4th 960, 988.)
This is true whether the individual is in the residence at the time the perpetrator enters the
residence or enters the residence during the commission of the burglary. Indeed, a person
who enters his or her residence and surprises a perpetrator in the midst of committing a
burglary is perhaps at greater risk of harm than a resident who is present in the residence
when a burglar who thought the residence was empty enters the premises. Defendant’s
counsel herself argued during closing argument that “the reason why there was a
[section] 667.5(c)(21) limit[] in credits is because of the fear of that escalation into


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violence where actual human beings will be hurt and it will involve much more than
monetary loss and breaking in of a house.” The purpose of this enhancement is thus
furthered by construing the burglary as continuing beyond the initial moment of entry.
       The primary authority defendant cites to support his contention is not to the
contrary. Quoting People v. Garcia (2004) 121 Cal.App.4th 271, 280, defendant asserts,
“It is unquestionably the case that a ‘burglary is committed when a person “enters
any . . . building,” including a “house,” with intent to commit . . . larceny or any
felony.’ ” The Garcia court considered two issues, first whether defendant was entitled
to a jury trial on the question of whether a non-accomplice was present during the
commission of a burglary, a question it answered in the negative. (Id. at p. 274.) The
second issue concerned whether there was sufficient evidence to support the finding that
a non-accomplice was present in the residence during the burglary, in light of evidence
that the occupants of the house left through the front door after being startled by
continuous “loud knocks” and “banging” at the back door. (Id. at pp. 275, 280.) In this
context, the court observed, “The crime of burglary is committed when a person ‘enters
any . . . building,’ including a ‘house,’ ‘with intent to commit . . . larceny or any felony.’
[Citation.] Any entry, partial or complete will suffice. [Citation.] ‘[A]n entry occurs for
purposes of the burglary statute if any part of the intruder’s body, or a tool or instrument
wielded by the intruder is “inside the premises.” [Citations.]’ ” (Id. at p. 280.) As can be
seen, the court was commenting on when the burglary commenced, not the duration of
the burglary, as is the issue before us.
       In sum, we conclude the burglary continued beyond the moment of entry into the
Engels’ home and was still in progress when Christopher entered the home. Substantial
evidence therefore supports the finding that a person other than an accomplice was
present in the residence when defendant committed the burglary. (See People v. Garcia,
supra, 121 Cal.App.4th at p. 280.)
                                       DISPOSITION
       The judgment of conviction is affirmed.




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                                _________________________
                                Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




A140966; People v. Mosley




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