Filed 3/27/14 P. v. Cooke CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B246001

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA080565)
         v.

JEFFREY GLENN COOKE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Antonio
Barreto, Jr., Judge. Affirmed as modified.
                                                         ______
         Kevin Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
                                                         ______
       An information, filed on June 21, 2012, charged Jeffrey Glenn Cooke with one
count of first degree burglary under Penal Code section 459.1 The information alleged
that the burglary constituted a violent felony within the meaning of section 667.5,
subdivision (c)(21), “in that another person, other than an accomplice, was present in
the residence during the commission of the . . . offense.” It also alleged that Cooke
had a prior serious or violent felony conviction for assault with a deadly weapon
(§ 245, subd. (a)(1)), that qualified as a strike for purposes of the “Three Strikes” law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and subjected him to a five-year
enhancement under section 667, subdivision (a)(1). A jury found Cooke guilty of
burglary and “true” the allegations that the burglary was of the first degree and that
“there was another person present, other than an accomplice, during the commission
of the [crime].” Cooke admitted his prior conviction for assault with a deadly
weapon and agreed that it constituted a strike and a serious felony for the section 667,
subdivision (a)(1), enhancement. The trial court sentenced him to a state prison term of
nine years, consisting of the low term of two years for first degree burglary, doubled
pursuant to the Three Strikes law, plus five years under section 667, subdivision (a)(1).
       Cooke appealed, contending that (1) the trial court committed reversible error
by admitting evidence under Evidence Code section 1101, subdivision (b), and (2) the
evidence is insufficient to support the jury’s finding that another person, other than an
accomplice, was present in the residence during the burglary. The People ask us to
modify the abstract of judgment to reflect the parole revocation fine assessed by the
court. We reject Cooke’s contentions, modify the abstract of judgment to reflect the
parole revocation fine and affirm the judgment as modified.




1
       Statutory references are to the Penal Code unless otherwise noted.

                                              2
                                      DISCUSSION
1.     The Trial Court Did Not Commit Reversible Error by Admitting Evidence Under
       Evidence Code Section 1101, Subdivision (b)
       The burglary conviction involved an incident in which Cooke was found in the
home of the Valdez family in the bedroom of the younger daughter, Amy, who was
approximately 18 years old at the time. Amy and her older sister, Kelly, approximately
20 years old, returned home, with a friend, from the beach in the late afternoon of
April 17, 2012 to find Cooke locked in Amy’s bedroom while wearing some items of
Amy’s clothing. Cooke, who once had worked for Amy’s father and had stayed in a
vacant apartment of a building owned by the family, left the residence through the
backyard, wrapping one of the Valdez’s towels around his waist. Amy and Kelly
discovered that Amy’s belongings had been “rifled through,” with items pulled out of
drawers and the closet and off of shelves. They found three backpacks, one belonging to
Amy, one to the friend and another they did not recognize, filled with some of Amy’s
underwear, clothing and high-heeled shoes. Three trash bags also were in Amy’s room,
containing more of her clothing, underwear and high-heeled shoes, as well as her iPad
tablet and Kelly’s laptop computer. A jar of mayonnaise and hot dogs, of the type the
Valdez family generally kept in the refrigerator, were in the room, as well as a dirty
tampon, which had been used after it was removed from a box of tampons in the friend’s
backpack.
       In addition to this evidence, the trial court admitted evidence, under Evidence
Code section 1101, subdivision (b),2 through Amy and Kelly’s mother and father that on
a prior occasion the mother had found in a garage, rented by the family and in which

2
       Evidence Code section 1101, subdivision (b), provides, “Nothing in this section
prohibits the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident, or whether a
defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act
did not reasonably and in good faith believe that the victim consented) other than his or
her disposition to commit such an act.”


                                             3
Cooke had stayed for a period of time, a trash bag containing male clothing that she did
not recognize, as well as the mother’s cardigan sweater and clothes and shoes belonging
to Amy. Cooke contends that the admission of this evidence constituted reversible error.
       Even assuming error in admitting the evidence, the admission did not prejudice
Cooke, whether harmless error is judged under the state standard for erroneous
evidentiary rulings, which we believe applicable here (People v. Cunningham (2001)
25 Cal.4th 926, 998-999; People v. Watson (1956) 46 Cal.2d 818, 836), or the elevated
standard that would be required if, as Cooke contends, admission of the evidence violated
his due process rights (Crane v. Kentucky (1986) 476 U.S. 683, 690-691; Chapman v.
California (1967) 386 U.S. 18, 24). An issue of dispute at trial was whether on April 17,
2012 Cooke possessed the intent to commit a theft as he entered either the Valdez home
or Amy’s bedroom, as required for a burglary conviction. In reaching its guilty verdict
on the burglary charge, the jury necessarily concluded that Cooke had that intent. Such a
conclusion was reasonably inferred from the evidence that Amy’s clothing and shoes and
electronic devices belonging to Amy and Kelly had been placed in trash bags in Amy’s
room where Cooke was found wearing items of Amy’s clothing. In addition, backpacks
were filled with Amy’s clothing and shoes. Given this evidence, the admission of
testimony that a cardigan sweater of Amy and Kelly’s mother and several items of Amy’s
clothing were found in a trash bag in a garage once occupied by Cooke would not have
tipped the evidence, as Cooke suggests, to enable the jury to find intent with respect to
the burglary charge. In other words, if the jury did not believe that Cooke had the intent
to commit a theft upon entering the Valdez home or Amy’s bedroom on April 17, 2012,
then it would not have changed its mind to reach a different result simply because of the
items found in the trash bag in the garage, as Cooke’s intent in both instances appeared
the same. Cooke, therefore, is not entitled to reversal of the judgment based on
admission of the Evidence Code section 1101, subdivision (b), evidence.




                                             4
2.     Sufficient Evidence Supports the Jury’s Finding That Another Person, Other Than
       an Accomplice, Was Present During the Commission of the Burglary
       In reviewing challenges to the sufficiency of the evidence, we “consider the
evidence in a light most favorable to the judgment and presume the existence of every
fact the trier could reasonably deduce from the evidence in support of the judgment. The
test is whether substantial evidence supports the decision, not whether the evidence
proves guilt beyond a reasonable doubt. [Citations.]” (People v. Mincey (1992) 2 Cal.4th
408, 432, fn. omitted.) Substantial evidence is that which is “reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
       Cooke contends the evidence is not sufficient to support the jury’s finding that
another person, other than an accomplice, was present in the Valdez home during the
commission of the burglary. According to Cooke, a conclusion that the Valdez’s son,
Brandon, was in the home during the commission of the burglary could be based only on
speculation, which does not rise to the level of substantial evidence. We disagree.
       With respect to the “another person present” allegation, the trial court instructed
the jury under CALCRIM No. 3250, “If you find the defendant guilty of the [burglary]
crime charged in Count 1, you must decide whether the People have proved the
additional allegation that there was another person present, other than an accomplice, in
the residence during the commission of the burglary. [¶] To prove this allegation, the
People must prove that: [¶] 1. There was another person present at the time the defendant
entered an inhabited dwelling house, or a room within an inhabited dwelling house, with
the intent to commit a theft, and [¶] 2. That person was not an accomplice to the
commission of the burglary. [¶] It is not necessary that the defendant be aware that there
was another person present, other than an accomplice, in order for you to find this
allegation to be true. [¶] . . . [¶] . . . [¶] . . . [¶] The People have the burden of proving
each allegation beyond a reasonable doubt. If the People have not met this burden, you
must find that the allegation has not been proved.”




                                                 5
       The evidence showed that Amy left the house for the beach with Kelly and her
friend around 1:00 p.m. on April 17, 2012. The prosecutor asked, “At the time that you
left your house, was there anyone that was still inside when you left?” Amy responded,
“Yes, my brother . . . Brandon.” Kelly also identified Brandon as being in the house
when she, Amy and the friend left for the beach. Amy said Brandon “kind of just stayed
in his room by himself, played video games, read books” and acknowledged he was a bit
of a recluse. According to Kelly, Brandon did not come out of his room much, staying in
the room to play video games and coming out only to eat and use the bathroom. Amy
and Kelly both testified that Brandon was in the house three or four hours later when they
returned from the beach, as he came out of his room when Amy and Kelly were trying to
figure out who was in Amy’s room behind a locked door. Based on this evidence, the
jury could reasonably infer that Brandon was home when Cooke entered either the home
or Amy’s room with the intent to commit a theft. As a result, substantial evidence
supports the jury’s “true” finding on the “another person present” allegation.
3.     The Abstract of Judgment Is Modified to Reflect a Parole Revocation Fine
       The trial court assessed and then stayed a $200 parole revocation fine.
(§ 1202.45.) The parole revocation fine, however, is not reflected in the abstract of
judgment. We modify the abstract of judgment to reflect the $200 parole revocation fine
assessed by the court. (People v. Smith (2001) 24 Cal.4th 849, 854.)




                                             6
                                     DISPOSITION
       The judgment is modified to reflect the $200 parole revocation fine assessed by
the trial court. As modified, the judgment is affirmed. The trial court is directed to send
a corrected copy of the abstract of judgment to the Department of Corrections and
Rehabilitation.
       NOT TO BE PUBLISHED.




                                                 ROTHSCHILD, Acting P. J.
We concur:




              CHANEY, J.




              JOHNSON, J.




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