Filed 11/25/13 P. v. Lout CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064129
         Plaintiff and Respondent,
                                                                            (Super. Ct. Nos. BF136097B &
                   v.                                                                BF138306A)

JOSEPH DANIEL LOUT,
                                                                                         OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II and Colette M. Humphrey, Judges.*
         Eleanor M. Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Caely E.
Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



*     Judge Twisselman presided in case No. BF136097B; Judge Humphrey presided in
case No. BF138306A.
       In Kern County Superior Court case No. BF136097B, a jury convicted defendant
Joseph Daniel Lout of first degree burglary. (Pen. Code, § 460, subd. (a); count 1.)1
Following a bifurcated court trial, defendant was found to have suffered a prior
conviction under the “Three Strikes” law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)),
and to have served two prior prison terms (§ 667.5, subd. (b)). His request to dismiss his
prior strike conviction was denied, and he was sentenced to a total of 15 years in prison,
and ordered to pay various fees, fines, and assessments.2
       In Kern County Superior Court case No. BF138306A, defendant was charged by
complaint with 23 felony offenses committed while he was on bail (§ 12022.1) in case
No. BF136097B. The complaint further alleged defendant had suffered a prior strike
conviction and served three prior prison terms. He subsequently pleaded nolo contendere
to counts 4 (forgery; § 470, subd. (d)), 12 (second degree burglary; § 460, subd. (b)), and
23 (possession of a firearm by a felon; former § 12021, subd. (a)(1)), and admitted the
prior strike conviction, on condition that the remaining charges and allegations would be
dismissed and he would receive a four-year term that would be served consecutively to




1      All statutory references are to the Penal Code unless otherwise stated.
       Defendant was charged, in count 2, with second degree burglary. (§ 460,
subd. (b).) Jurors were instructed that this was an alternative to count 1. They made no
finding thereon, and the charge was dismissed.
       The clerk’s minutes of October 21, 2011, and November 29, 2011, the court’s
pronouncement of sentence, and the abstract of judgment erroneously show defendant
was convicted of first degree burglary in count 2, rather than count 1 as reflected in the
verdict.
2     Defendant’s sentence included a five-year term imposed pursuant to section 667,
subdivision (a), despite the fact such an enhancement was not alleged in the amended
information or found true during the court trial.



                                             2.
his sentence in case No. BF136097B. Defendant was sentenced in accord with the terms
of the plea bargain.3
       Defendant challenges his conviction for first degree burglary on various grounds.
We hold that a determination by a municipality that a structure is unfit for occupancy
does not, in and of itself, preclude a first degree burglary conviction. First degree
burglary is an offense against habitation, not an offense against legal habitability.
       We further hold, however, that the evidence was insufficient to establish the house
was an inhabited dwelling. The house had not been lived in on a fulltime basis for
several years, the owner did not consider it to be “livable” and, although the owner
intended to move back into the house at some point several years into the future, at the
time of defendant’s entry, the house was merely a storage facility for some of the owner’s
belongings.
       We reject defendant’s assertion the evidence was insufficient to establish he
entered the house with the intent to commit larceny or any felony. We find the burglary
occurred and was of the second degree. We modify the conviction accordingly and
remand the matter to the trial court for resentencing.
                                          FACTS
                                              I
                                 PROSECUTION EVIDENCE
       Around noon on March 20, 2011, Bakersfield Police Officer Guinn was
dispatched to a house in the 6100 block of Quaking Aspen in response to a call regarding
suspicious activity. When he arrived, he observed a white Mitsubishi parked directly
across the street from the house.



3     Defendant does not challenge the plea or sentence in case No. BF138306A.
Accordingly, we dispense with any further discussion of that case.



                                              3.
      Guinn and Officer Wimberly, who arrived shortly after, walked to the front of the
residence. On the front door, Guinn observed a large yellow sticker placed by
Bakersfield Code Enforcement, warning it was a misdemeanor to occupy the house
because it was unsafe. Just north of the front door was a window; a screen was on the
ground immediately below it and the window was open approximately four or five
inches.
      Guinn pushed the window all the way open, stuck his head in, and yelled that they
were from the Bakersfield Police Department and that anyone inside was to make
themselves known. He made this announcement twice, but got no response. Guinn then
entered through the window. A puppy came running up from inside the house, and
Guinn observed the first subject, subsequently identified as Zach Olsen, in the main
family area. Guinn asked if there was anyone else inside the residence; Olsen said he did
not know.
      Guinn heard a sound coming from the hallway that led to the garage. He
illuminated the area with his flashlight, and observed defendant in the hallway. The door
from the hallway into the garage was open. Defendant was wearing heavy-duty
mechanic-type gloves. Guinn had investigated approximately 100 burglaries, with
puppies involved in perhaps three of them. In some, he had happened upon the
perpetrators when responding to the location. The suspects who wore gloves told him
they did so to conceal their fingerprints. Based on his training and experience, Guinn
believed defendant’s gloves were used for that purpose.4 In Guinn’s experience, there
were houses in Bakersfield that had been abandoned and in which people (“squatters”)
stayed for several days, drinking and doing drugs. This particular house contained more
property than houses in which Guinn typically saw squatters.


4     Olsen was not wearing gloves.



                                            4.
        Officer Mears assisted Guinn and Wimberly at the scene. The house was in
Mears’s patrol area. Mears had never seen anyone living in it. The grass in the yard was
tall.
        Defendant and Olsen were placed in the back of Mears’s patrol car, which was
equipped with a recording device. A conversation between the two was recorded;
defendant stated, “I thought that was your homeboys,” and “I’m fucking pissed. Fucking,
he’s the one that told me to go over there. I would have, fucking, I didn’t want to do it
today. I fucking wish I would have never laid eyes on that freaking stupid ass.”
        Mears had, like Guinn, investigated a number of burglaries. He had spoken to
individuals who were caught in the process of burglarizing a home, and who were
wearing gloves; those individuals said they wore gloves in order not to leave fingerprints.
Mears saw the gloves defendant was wearing; he had seen gloves like that on individuals
who committed burglaries.
        Javier Robledo was the owner of the house, which he purchased in 1990. He and
his family had lived in Inglewood since 1978, but wanted to move out of Los Angeles.
He, his brother, and his mother moved into the house together. His mother died six or
seven years before trial. His brother, the last one to live at the house, moved back to Los
Angeles at least three or four years before trial. The house was left pretty much the way
it was when Robledo’s mother was living there, with furniture, kitchen appliances, beds,
and clothing remaining inside.
        As of the time of trial, Robledo lived in Inglewood and worked in El Segundo.
His job was in the Los Angeles area and he got tired of living in Bakersfield and
commuting to work, so he stayed in Inglewood during the week. Robledo tried to come
back to the Bakersfield house every weekend, but it was more difficult now that things
were “all messed up.” He no longer came as often because he could not stay at the house.
There was no place to sleep. The last time Robledo checked, there was no clothing at the
house. Someone had broken in and “pretty much took everything.” When Robledo left

                                             5.
the house on weekends, the front door was locked. He secured what he could to make it
safe so no one could get in, but one or two of the windows were broken.
       As of March 20, 2011, Robledo knew the water to still be connected at the house.
He customarily paid the water bill a year at a time, and had just received a bill prior to
trial. He normally tried to pay for the electricity six months at a time, but was unable to
make payments when he came on the weekends because the offices were closed. He
believed the electricity was no longer connected. Because he could not really use the
house, he was coming once a month to check on it. He usually just went in and walked
around to see if any damage had been done. He had a friend cut the grass, but when he
saw the property the last time, it appeared the grass had not been cut.
       Robledo planned to make the Bakersfield house his retirement location once he
retired from work. He was almost 57 years old at the time of trial and the legal
retirement age was 67, although he hoped to retire early, within five to six years. His
intent at the time of trial was to secure the surroundings first, put bars on the windows,
and slowly fix up the things that got damaged, so that he could live in the house at least
on weekends. That was always his intent, even when he stopped coming every weekend.
       Robledo was aware of a yellow sticker on the door of the house, but he never read
it. Normally, he would arrive late in the afternoon, then just walk around and leave. He
did not stay inside the house because it was not livable. In November 2010, he received,
at his Inglewood address, a letter from the City of Bakersfield, saying he was “in
violation” and that they had done some work on the outside of the house. He paid them
for the services they provided. There was also a letter dated July 2010, but Robledo
never received it. The July 2010 letter was sent to the Quaking Aspen address. Although
Robledo was still receiving mail there, the postal worker would not leave mail once the
mailbox was full.
       The first time Robledo discovered that people apparently were going into the
residence and taking things was on November 8, 2010, the day he paid the City of

                                              6.
Bakersfield for its services. He never prepared a meal in the house after that date,
because everything had been taken away. The last time he slept in the house was also
before that date.
                                             II
                                   DEFENSE EVIDENCE
       Mark Turk was a code enforcement officer for the City of Bakersfield. He was
familiar with the Quaking Aspen property. In 2010, the house was vacant and in a state
that rendered it a nuisance, in violation of the Bakersfield Municipal Code. An initial
inspection was made on May 27, 2010, and a first notice sent. Because the condition was
not corrected by the time of reinspection, a second notice was sent. The City then hired a
contractor to clean the property to correct the public nuisance. It was abated by the
contractor on September 15, 2010.5 The case was closed on September 17, 2010, and
Turk was unaware of any current action being taken with regard to the property.6 On
October 15, 2010, a notice was sent to the property owner that fees were being filed
against the property as a tax lien. The October letter was sent to the address listed on the
tax assessor’s rolls, which was in Inglewood.
       When a house is vacant and does not have utilities, it is common practice to post a
sticker on the door stating the house is not to be entered. A notice of that type was posted
on the Quaking Aspen residence. This gives police recourse to cite or arrest vagrants or
vandals caught trespassing in the structure. If the owner wants to rehabilitate the place or

5      Abatement involved removing overgrown or dead vegetation, lifting up the foliage
so there was a clear view of the property in front with no hidden windows, pumping
stagnant water out of the swimming pool, and making sure all doors and windows were
secured.
6      Turk was working in another part of town at the time he testified, so he personally
did not have any knowledge of other open cases with regard to this property. If the
sticker was still on the door at the time of trial, this would mean the property had not
“been made.”



                                             7.
make it habitable again, he or she is allowed to go in during daylight hours, but must first
notify the department. The house cannot be occupied after dark, however. In addition,
utilities (meaning a lawful heat source, hot and cold running water, and electricity) must
be restored before the owner is allowed to inhabit the house. To Turk’s knowledge, one
of the reasons the sticker went on the door at this location was because there were no
utilities there.
        Turk had seen numerous vacant, abandoned houses during the course of his
present employment. He found them in various stages, so it was not rare to find houses
that had piles of belongings inside.
                                       DISCUSSION
        Defendant contends his conviction for first degree burglary cannot stand because
the Quaking Aspen house did not constitute an “inhabited dwelling house” within the
meaning of the foregoing statutes.
        “Every person who enters any house … with intent to commit grand or petit
larceny or any felony is guilty of burglary.” (§ 459.) Burglary of an inhabited dwelling
house constitutes first degree burglary, while all other kinds of burglary are of the second
degree. (§ 460, subds. (a) & (b).) “‘[I]nhabited’ means currently being used for dwelling
purposes, whether occupied or not.” (§ 459.)
        Where the evidence is undisputed, its legal sufficiency to support a conviction is a
question of law that we review de novo. (People v. Villalobos (2006) 145 Cal.App.4th
310, 316, fn. 3.) In all other situations, the test of sufficiency of the evidence is whether,
reviewing the whole record in the light most favorable to the judgment below, substantial
evidence is disclosed such that a reasonable trier of fact could find the essential elements
of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578;
accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that
evidence which is “reasonable, credible, and of solid value.” (People v. Johnson, supra,
at p. 578.) An appellate court must “presume in support of the judgment the existence of

                                              8.
every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970)
3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver
(1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual
conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96
Cal.App.3d 353, 367). This standard of review is applicable regardless of whether the
prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart
(2004) 32 Cal.4th 1107, 1125.)
       Defendant first says his conviction for first degree burglary cannot stand because
the house at issue was not legally inhabitable. It is undisputed that the Quaking Aspen
structure could not legally be occupied. (Bakersfield Mun. Code, § 8.80.060.) However,
the plain language of section 459 contains no requirement of legal habitability.
       Nor do we find such a requirement in the legislative intent underlying the burglary
statutes. First degree burglary is “a serious crime meant to protect important societal
policies. [Citations.]” (People v. DeRouen (1995) 38 Cal.App.4th 86, 91 (DeRouen),
disapproved on another ground in People v. Allen (1999) 21 Cal.4th 846, 864-866 &
fn. 21.) “‘Cases interpreting the term “inhabited dwelling house” in section 460 …
ha[ve] made it clear that this term should be construed to effectuate the legislative
purposes underlying the statute, namely, to protect the peaceful occupation of one’s
residence.” (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1106.) “California’s
burglary law ‘stems from the common law policy of providing heightened protection to
the residence. [Citations.]’ [Citation.] At common law, burglary was considered ‘an
offense against habitation rather than against property. The peace of mind and security of
the residents was sought to be protected, rather than the property.’ [Citation.]” (People
v. Villalobos, supra, 145 Cal.App.4th at p. 317.) “‘“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

                                              9.
or panic react violently to the invasion, thereby inviting more violence.”’ [Citation.] ‘In
addition, a burglary of an inhabited dwelling involves an invasion of perhaps the most
secret zone of privacy, the place where trinkets, mementos, heirlooms, and the other stuff
of personal history are kept. Society therefore has an important interest in seeing to it
that burglars stay out of inhabited dwelling houses.’ [Citation.]” (DeRouen, supra, 38
Cal.App.4th at p. 91.)
       “In keeping with the purpose of the statute, the term ‘“inhabited dwelling house”’
has been given a ‘broad, inclusive definition.’ [Citation.]” (People v. Villalobos, supra,
145 Cal.App.4th at p. 317.) The purpose of the statute would not be served by excluding
from its protection a residence that is factually inhabited but illegally so. (See People v.
Rojos (1995) 31 Cal.App.4th 611, 614-615 [occupant need not have possessory right to
premises to render residence “inhabited dwelling house”; dispute over right to occupy
premises, even if a matter for law enforcement, makes no difference as far as application
of burglary statutes].)
       People v. Aguilar (2010) 181 Cal.App.4th 966 (Aguilar), on which defendant
relies, does not alter our conclusion. In that case, the defendant was found inside the
victim’s apartment after the victim and other residents of an apartment building were
temporarily relocated to a hotel because of a fire in one of the units, but before the victim
was notified by apartment management that he would be unable to move back into his
apartment and would need to be transferred to another unit in the same apartment
complex. On appeal, the defendant claimed he could not be convicted of first degree
burglary because the evidence showed the victim’s apartment was not inhabited at the
time of the burglary, because it was so damaged that it was no longer usable as a
residence and the victim was not permitted to return there to live. (Id. at pp. 968-969.)
The Court of Appeal concluded the argument “must be rejected because it does not focus
on the point of view of the victim at the time the burglary occurred.” (Id. at p. 971.) The
court upheld the exclusion, as irrelevant, of testimony from a city building inspector who

                                             10.
examined the apartment building on the date of the fire and determined the building was
uninhabitable, because, habitability being determined based on the point of view of the
victim, “the technical status of the apartment building under applicable building codes
and regulations was not relevant to whether the victim’s apartment was ‘inhabited’ within
the meaning of section 459 at the time of the burglary.” (Id. at pp. 972-973.) Since there
was no evidence suggesting the victim was aware of the building inspector’s opinion, that
opinion “could not have had any effect on the habitability of the apartment from the
victim’s point of view at the time of the burglary .…” (Id. at p. 973.)
       Aguilar does not engraft a “legally habitable” requirement onto section 459.
Whether a person is legally permitted to live somewhere is not the same question as
whether, from that person’s point of view, the location is used as a residence. In the
present case, there was some question whether Robledo actually knew the Quaking
Aspen house had been deemed legally uninhabitable. Defendant was permitted to present
evidence on this issue and its effect on Robledo’s point of view. Aguilar does not entitle
him to more.
       Nevertheless, we agree with defendant that, under the specific facts of this case,
the house was not “inhabited.” Accordingly, defendant’s conviction for first degree
burglary cannot stand.
       As we previously observed, section 459 defines “inhabited” as “currently being
used for dwelling purposes, whether occupied or not.” In People v. Rodriguez (2004)
122 Cal.App.4th 121, 132, the court compiled a number of authorities on when a
structure is “inhabited”:

              “For purposes of the California first degree burglary statute, a
       structure ‘need not be occupied at the time [of entry]; it is inhabited if
       someone lives there, even though the person is temporarily absent.’ (2
       Witkin & Epstein, Cal. Criminal Law[ (3d ed. 2000)] Crimes Against
       Property, § 114, p. 144; see People v. Hughes (2002) 27 Cal.4th 287, 354-
       355 [apartment was inhabited even though occupant was in process of
       moving; her furnishings remained there, and she was present in apartment


                                            11.
       during daytime hours]; People v. Hernandez (1992) 9 Cal.App.4th 438
       [apartment was inhabited when tenants moved all of their belongings into
       it, but had not yet slept in it or unpacked]; People v. Jackson (1992) 6
       Cal.App.4th 1185 [dwelling continued to be inhabited because tenant who
       intended to move out had not vacated premises and was still using the
       house at time of robbery]; People v. Marquez (1983) 143 Cal.App.3d 797,
       800, 802 [house inhabited even though resident, under conservatorship, had
       been absent for two and a half years, because resident intended to return];
       CALJIC No. 14.52 [‘[an inhabited dwelling house] is inhabited although
       the occupants are temporarily absent’].) A structure that was once used for
       dwelling purposes is no longer inhabited when its occupants permanently
       cease using it as living quarters, and no other person is using it as living
       quarters. (People v. Cardona (1983) 142 Cal.App.3d 481, 483 [house no
       longer inhabited when residents had moved and no identifiable person was
       currently using it as sleeping quarters][7]; People v. Valdez (1962) 203
       Cal.App.2d 559 [house not inhabited when previous tenant had moved out
       a week earlier and new tenant had not moved any belongings into house].)”
       In the present case, the evidence showed the Quaking Aspen house had not been
lived in on a fulltime basis for several years, since Robledo’s brother moved out. It
remained fully furnished, however, and Robledo had lived there on weekends for a while.
       At the time defendant entered the house, however, this situation no longer existed.
Robledo — by his own testimony — could not “really use the house,” he was only
coming about once a month to check on it by walking around to see if any damage had
been done. This situation had existed since at least June 2010, well before the date of the
offense. Although the water was connected, it did not appear the electricity was turned
on. Mail was still being delivered to the house, but not once the mailbox was full.
Robledo last prepared a meal and slept in the house prior to November 8, 2010, again
well before the date of the offense. It was Robledo’s stated intent to make the house his
retirement home, but his anticipated retirement date was several years into the future.

7      Because statutory amendments have eliminated the requirement that a burglary
occur at night in order for it to be first degree burglary, the use of a house as sleeping
quarters remains a circumstance to be taken into consideration, but is no longer
determinative. (People v. Hughes, supra, 27 Cal.4th at pp. 354-355.)



                                             12.
Moreover, Robledo acknowledged he would have to fix the damage in order to be able to
live in the house on weekends. Despite the fact he was aware of things being stolen and
windows being broken, he had not taken steps to secure the residence other than locking
the front door. In his words, he “[didn’t] stay there because [it was] not livable.”8
       The Quaking Aspen structure clearly was not an abandoned dwelling. Neither,
however, was it an inhabited one. “The ‘“‘inhabited-uninhabited’ dichotomy turns not on
the immediate presence or absence of some person but rather on the character of the use
of the building.”’ [Citation.] ‘[T]he proper question is whether the nature of a
structure’s composition is such that a reasonable person would expect some protection
from unauthorized intrusion.’ [Citation.]” (DeRouen, supra, 38 Cal.App.4th at pp. 91-
92.)9 “Thus, a temporary place of abode, such as a weekend fishing retreat [citation], a
hospital room [citation] or even a jail cell [citation], may qualify [as an inhabited
dwelling].” (People v. Villalobos, supra, 145 Cal.App.4th at p. 318.)
       Here, Robledo himself considered the house unlivable, as would any reasonable
person. His plan to fix it up and someday return was nebulous. In the meantime, the
premises had deteriorated to the point they were declared legally uninhabitable.
(Compare People v. Marquez, supra, 143 Cal.App.3d at pp. 799-800, 801-802 [house

8      Photographs taken inside the house were admitted at trial and are contained in the
record on appeal. They confirm Robledo’s assessment.
9      The source of the second sentence quoted in DeRouen is People v. Brown (1992) 6
Cal.App.4th 1489, 1496. The issue in Brown was whether entry onto an unenclosed front
porch constituted entry into a residence so as to warrant a jury instruction, based on
section 198.5, concerning an occupant’s use of deadly force against an intruder. (Brown,
supra, at p. 1495.) Brown in turn relied primarily on People v. Nible (1988) 200
Cal.App.3d 838, in which the issue was whether penetration of a window screen, but not
the window itself, constituted burglary. (Id. at p. 841.) Although it would seem the
DeRouen court took the quotation out of context, the California Supreme Court has
quoted that portion of DeRouen with approval in the context of determining whether an
apartment constituted an inhabited dwelling within the meaning of the burglary statutes.
(See People v. Hughes, supra, 27 Cal.4th at p. 355.)



                                             13.
was “inhabited dwelling” where resident had moved to boarding home under
conservatorship; despite the fact she had not lived in house in more than two years and
there was doubt she would return, the house was furnished, entered every day, and
maintained].) Even from the victim’s perspective, the building was not “serving as the
functional equivalent of a home away from home.” (People v. Long (2010) 189
Cal.App.4th 826, 837.)
       Additionally, although a victim’s intent to return and inhabit a dwelling in the
future is important (Aguilar, supra, 181 Cal.App.4th at p. 970), and “[i]t is the intent and
not the length of absence which controls” (People v. Marquez, supra, 143 Cal.App.3d at
p. 802), no single factor is dispositive of whether a structure is an inhabited dwelling (see
People v. Villalobos, supra, 145 Cal.App.4th at p. 320). Rather, the totality of the
circumstances must be considered. (See People v. Hernandez, supra, 9 Cal.App.4th at
p. 441.)
       Whatever Robledo’s future plans, at the time of defendant’s entry, the house was
not an inhabited dwelling, but merely a storage facility for some of the Robledo family’s
belongings. In such circumstances, a reasonable person might hope those belongings
would go unmolested. There do not exist, however, “the peculiar risks of violence and
resulting injury which inhere in the burglary of a home” — the risks upon which the
Legislature’s distinction between first and second degree burglary was founded. (People
v. Hines (1989) 210 Cal.App.3d 945, 950-951, disapproved on another ground in People
v. Allen, supra, 21 Cal.4th at pp. 864-866 & fn. 21.)
       Because the Quaking Aspen house did not constitute an “inhabited dwelling,”
there was insufficient evidence to support defendant’s conviction for first degree
burglary. Principles of double jeopardy prevent defendant from being retried for that
degree of offense. (See People v. Muszynski (2002) 100 Cal.App.4th 672, 684.) This
does not mean, however, that no burglary conviction can stand. Pursuant to
sections 1181, subdivision 6, and 1260, “[i]f the evidence shows the defendant not guilty

                                             14.
of the degree of the crime of which he was convicted, but guilty of a lesser degree
thereof, or of a lesser crime included therein, the court may modify the judgment
accordingly, without granting or ordering a new trial. [Citations.]” (People v. Bechler
(1998) 61 Cal.App.4th 373, 378-379; accord, People v. Enriquez (1967) 65 Cal.2d 746,
749 & fn. 1.) “‘The purpose for allowing an appellate court to modify the judgment to a
lesser included offense is to “obviate the necessity of a new trial when the insufficiency
of the evidence only goes to the degree of the crime.” [Citation.]’ [Citation.]” (People
v. Bechler, supra, at p. 379.)
       Defendant says the evidence did not establish a second degree burglary (meaning,
we presume, we cannot modify his conviction accordingly) because there was no
evidence he entered with the requisite intent. Burglary requires an entry “with the intent
to commit larceny or any felony .… [Citation.]” (People v. Foster (2010) 50 Cal.4th
1301, 1348.) Here, the prosecutor proceeded, and the jury was instructed, on the theory
defendant entered “with the specific intent to steal, take, and carry away the personal
property of another … and with the further specific intent to deprive the owner
permanently of that property .…”
       “Because intent is rarely susceptible of direct proof, it may be inferred from all the
facts and circumstances disclosed by the evidence. [Citations.] Whether the entry was
accompanied by the requisite intent is a question of fact for the jury. [Citation.] ‘Where
the facts and circumstances of a particular case and the conduct of the defendant
reasonably indicate his purpose in entering the premises is to commit larceny or any
felony, the conviction may not be disturbed on appeal.’ [Citation.]” (People v. Kwok
(1998) 63 Cal.App.4th 1236, 1245; accord, People v. Holt (1997) 15 Cal.4th 619, 669.)
       Considered in the light most favorable to the judgment, the evidence —
particularly defendant’s wearing gloves and failing to respond when Officer Guinn
ordered anyone inside the house to make himself known, and his statements to Olsen in
the patrol car — is reasonably susceptible of the conclusion defendant entered the house

                                            15.
with the intent to steal. It is immaterial that he conceivably only intended to take items of
minor value and did not successfully acquire anything at all. (People v. Meredith (2009)
174 Cal.App.4th 1257, 1264; People v. Martinez (2002) 95 Cal.App.4th 581, 584-585.)
Accordingly, the evidence is sufficient to uphold a conviction for second degree
burglary.10
                                      DISPOSITION
       The judgment of conviction in Kern County Superior Court case No. BF136097B
is modified to provide that defendant was convicted, in count 1, of second degree
burglary in violation of Penal Code sections 459 and 460, subdivision (b). As so
modified, the judgment of conviction is affirmed. Sentence is vacated, and the matter is
remanded to the trial court to resentence defendant accordingly. The trial court is
directed not to reimpose an enhancement pursuant to Penal Code section 667,
subdivision (a).
       The judgment in Kern County Superior Court case No. BF138306A is affirmed.

                                                                 _____________________
                                                                           DETJEN, J.
WE CONCUR:


 _____________________
 GOMES, Acting P.J.


 _____________________
 POOCHIGIAN, J.

10      In light of our conclusion, we need not address defendant’s claim of instructional
error, as it pertains only to the inhabited dwelling/first degree burglary issue. We also
need not determine whether the jury was properly given the option of convicting
defendant of trespass (§ 602.5), a lesser related offense of burglary. (See People v.
Foster, supra, 50 Cal.4th at pp. 1343-1344; People v. Taylor (2010) 48 Cal.4th 574, 622;
People v. Birks (1998) 19 Cal.4th 108, 112-113, 118, fn. 8, 136-137.)



                                            16.
