Filed 4/3/15 P. v. Tapia 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F068326
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CRM029693)
                   v.

GERARDO TAPIA,                                                                           OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced County. Mark V.
Bacciarini, Judge.
         Holly Jackson, 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, Stephen G. Herndon and Chung
Mi (Alexa) Choi, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



*        Before Cornell, Acting P.J., Gomes, J. and Poochigian, J.
                                       INTRODUCTION
       Appellant Gerardo Tapia pled no contest to one count of residential burglary. On
appeal, he contends that his crime did not constitute a conviction for first degree burglary
but instead a conviction for second degree burglary. We disagree and affirm the
judgment.
                                        PROCEEDINGS
       Appellant was charged in a criminal complaint filed on October 1, 2013, with
three separate felony counts of first degree burglary (Pen. Code, § 459, counts 1, 2, & 3)
(unless otherwise designated, all statutory references are to the Penal Code), felony
possession of a concealed dirk or dagger (§ 21310, count 4), and misdemeanor possession
of narcotics paraphernalia (Health & Saf. Code, § 11364.1, subd. (a) [now § 11364, subd.
(a)], count 5).1
       On October 10 appellant entered into a plea agreement in which he would admit
count 1 and receive five years’ probation, with a suspended sentence of six years.
Appellant executed a felony advisement rights, waiver and plea form (plea form)
acknowledging (1) he discussed the case with his attorney; (2) attorney explained the
elements of the charged offenses, including any enhancements, (3) appellant discussed
the facts known to him about the case; and (4) appellant discussed his constitutional and
statutory rights, as well as any defenses, with counsel.
       In the plea form, appellant acknowledged and waived his rights pursuant to
Boykin/Tahl.2 Appellant initialed his acknowledgment that “There is a factual basis for
my plea and the court may consider any report or transcript in the file in finding there is a


1      All further date references are to the year 2013. All of the burglary counts
allegedly occurred at the Summertrace Resort Apartments on Devonwood Drive in
Merced. Count 1 allegedly occurred on July 14, count 2 allegedly occurred on July 16,
and count 3 allegedly occurred on July 18.
2      Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.


                                             2.
factual basis for my plea.” Appellant agreed in the plea form that he was pleading no
contest to one count of first degree burglary. Appellant further waived a formal
probation report.
       Prior to the trial court taking appellant’s change of plea, the court noted a
discussion between the parties concerning whether appellant’s burglaries were first or
second degree burglary. The court was about to recess for a week when the parties
entered into a plea agreement. Defense counsel advised the court that he had explained
the offer to appellant and appellant was “pretty adamant he wants to proceed today with
the offer and his plea.” Defense counsel advised appellant it would be better to wait a
week and maybe appellant could get a better result, but appellant wanted to proceed with
the plea bargain.
       The trial court verified from appellant that he had talked to his attorney, he had
had enough time to discuss his case, and he intended to change his plea to guilty or no
contest. Appellant confirmed that he had initialed the plea form, had no questions about
the form, and understood it. Appellant acknowledged that he understood and waived his
Boykin/Tahl rights, and with full knowledge of the consequences of the plea, pled no
contest to count 1, felony residential burglary on July 14. Defense counsel concurred in
appellant’s decision to waive his rights and change his plea. Appellant further waived
preparation of a full probation report but would receive a limited report reviewing only
custody credits and fines.
       On October 17, the trial court sentenced appellant to a suspended prison term of
six years. The court placed appellant on probation for five years upon various terms and
conditions. Appellant filed a timely notice of appeal and obtained a certificate of
probable cause from the trial court.
                                          FACTS
       Because there was no preliminary hearing or full probation report, the facts are
limited to information set forth in the police reports. On July 15 Merced Police Officer

                                              3.
McComb met with the owner of the Summertrace Resort Apartments, John Maxwell,
who reported that coin-operated laundry machines in the apartment complex were being
broken into and the change boxes were being emptied. Maxwell placed a hidden camera
in one of the laundry rooms and captured video footage of a subject breaking into the
laundry room on July 14 just before midnight. The subject had a small tool in his hand
that he slipped into the locking mechanism of the laundry machine to manipulate the
lock. The subject was an unknown Hispanic male whom Maxwell did not recognize as a
tenant or former employee. McComb was able to obtain a partial fingerprint.
       There are five separate laundry rooms in the apartment complex. One laundry
room had a video surveillance camera. The lights in the laundry rooms were maintained,
were on at all times, and could not be turned off. Detective Rodriguez obtained two
photographs of the suspect from the video footage and copied the video onto a flash
drive. Appellant was later identified as the thief in the video.
       In August Rodriguez received video footage from Maxwell of appellant entering a
laundry room in the apartment complex on July 16 at 10:27 p.m. and taking about $300 in
quarters from a laundry machine. Rodriguez also received a video from Maxwell
showing appellant opening coin boxes in another laundry room of the apartment complex
at 11:00 p.m. on July 18.3
                             FIRST DEGREE BURGLARY
       Appellant challenges his conviction for first degree burglary, arguing that his entry
into a detached, unlocked laundry room qualified as second degree, not first degree,
burglary. Appellant’s argument rests to a large extent on distinguishing People v. Woods
(1998) 65 Cal.App.4th 345 (Woods). Appellant argues he can raise this point because he
obtained a certificate of probable cause. The People argue that appellant cannot


3     Appellant was arrested in September 2013 for offenses unrelated to the burglaries,
possession of a concealed dirk or dagger and possession of narcotics paraphernalia.


                                              4.
challenge the sufficiency of the evidence after entering a plea of guilty or no contest,
even with a certificate of probable cause. The People further argue that the holding in
Woods is applicable to this case.
       When a defendant changes his or her plea to guilty or no contest, the plea is
deemed to constitute a judicial admission of every element of the offense charged. It
serves as a stipulation that the People need not introduce proof to support the accusation.
“[T]he plea ipso facto supplies both evidence and verdict.” (People v. Voit (2011) 200
Cal.App.4th 1353, 1363-1364 (Voit).)
       “Under section 1237.5, a defendant may appeal from a conviction on a plea of
guilty or no contest only on grounds going to the legality of the proceedings; such a plea
precludes appellate consideration of issues related to guilt or innocence, including the
sufficiency of the evidence .…” (People v. Palmer (2013) 58 Cal.4th 110, 114
(Palmer).) Issues concerning a defendant’s guilt or innocence are not cognizable on
appeal from a guilty plea. When a defendant admits guilt, he or she waives an appellate
challenge to the sufficiency of the evidence of guilt. The same restrictions on appellate
issues apply to a no contest plea and the admission of an enhancement. (Voit, supra, 200
Cal.App.4th at p. 1364.)
       To appeal after conviction by plea of guilty or no contest, a defendant must obtain
a certificate of probable cause and the cognizable issues are limited to those based on
reasonable constitutional, jurisdictional, or other grounds going to the legality of the
proceedings resulting in the plea. The issuance of a certificate of probable cause does not
operate to expand the grounds upon which an appeal may be taken. Among the issues
that can be raised after a guilty plea or a plea of no contest is whether a defendant
knowingly, voluntarily, and intelligently waived his or her rights in entering the plea.
(Voit, supra, 200 Cal.App.4th at p. 1364.) A defendant also may assert that his or her
admission included a legal impossibility. (Id. at p. 1365.)



                                              5.
       To the extent that appellant’s contention is a challenge to the factual basis for his
plea or a claim that there was insufficient evidence to support his conviction for first
degree burglary, his claim is not cognizable on appeal, even with the certificate of
probable cause he obtained. In absence of facts to the contrary, we are left with a no
contest plea that accepts the necessary factual basis to support a first degree burglary
conviction.4 Appellant’s challenge to his first degree burglary conviction can include a
challenge to the legal impossibility of his plea. Such a challenge, however, must be
based on the available facts and not on conjecture.
       Assuming arguendo that appellant’s challenge is based on an assertion that his
plea is a legal impossibility, we turn to his contention that the facts of this case are
different from those in Woods. In Woods, the defendant burglarized the laundry room of
an apartment complex. A washing machine had been pulled from the wall and its coin
box broken. The laundry room door was locked and fresh pry marks were visible on
laundry room door. The apartment complex was a two-story, U-shaped building with an
open-air courtyard in the middle. Entry into the individual apartments was through the
open courtyard. There were unlocked wrought iron gate entrances on three sides of the
complex. The laundry room was on the ground floor in the corner of the complex.

4      The factual basis for appellant’s plea was not formally set forth in the plea form or
during the change of plea hearing. Appellant acknowledged when he initialed and
executed the plea form that (1) he discussed the case with his attorney; his attorney
explained the elements of the charged offenses, including any enhancements;
(3) appellant discussed the facts known to him about the case; and (4) appellant discussed
his constitutional and statutory rights, as well as any defenses, with counsel. Appellant
stipulated to a factual basis for his plea and that the trial court could refer to any report to
establish a factual basis for the plea. (See Palmer, supra, 58 Cal.4th at pp. 117-119
[factual stipulation by counsel without reference to documents establishing factual basis
for plea is adequate to establish a factual basis for the defendant’s guilty or nolo
contendere plea].) This stipulation was not made by counsel, but by appellant himself.
Any error in the trial court’s factual basis inquiry is deemed harmless if the record
otherwise supports the factual basis finding. (People v. Holmes (2004) 32 Cal.4th 432,
443; In re M.V. (2014) 225 Cal.App.4th 1495, 1526-1527.)


                                               6.
Immediately above and adjacent to the laundry room were occupied apartments. (Woods,
supra, 65 Cal.App.4th at p. 347.)
       Woods did not dispute that he burglarized a laundry facility within an apartment
complex. He contended that the laundry room in the apartment complex was like a
commercial laundromat and that he could be guilty only of second degree burglary.
(Woods, supra, 65 Cal.App.4th at p. 347.) The court in Woods noted that the burglary
statute defines the term “inhabited” as current use for dwelling purposes, whether or not
it is occupied. (Ibid.) Furthermore, a dwelling house includes areas not normally
considered part of the living space of a home. (Id. at pp. 347-348.) Among the examples
identified in Woods are garages attached to residences but accessible only from outside
the main residence, entry into a storeroom connected to home by a roofed breezeway, and
garage or storage areas that are functionally interconnected with and are an integral part
of a building’s living quarters. (Id. at p. 348.)
       The court in Woods noted that the defendant had failed to cite authority for his
argument that a laundry room must be an integral part of an individual apartment rather
than an integral part of an apartment complex in order to constitute an inhabited dwelling.
Woods found the relationship of the laundry room to the complex itself was the proper
focus of inquiry and held that “[b]ased on the evidence of the physical placement of the
laundry room within the complex and the fact it was used by tenants to do their laundry, a
household chore,” the Woods court found no error in the trial court’s implied finding that
the laundry room was an integral part of the complex and an inhabited dwelling and
therefore met the objective test for an inhabited dwelling. (Woods, supra, 65 Cal.App.4th
at p. 349.)
       Woods further rejected the defendant’s argument that the laundry room failed the
alternative “‘reasonable expectation test’” for an inhabited dwelling analyzed in People v.
Brown (1992) 6 Cal.App.4th 1489. (Woods, supra, 65 Cal.App.4th at p. 348.) The
reasonable expectation test focuses on the protection the inhabitants of the structure

                                               7.
reasonably expect because “‘one of the purposes of the burglary statute is to protect
against unauthorized entry and the attendant danger that the occupant will react violently
to the intrusion.’” (Id. at p. 349.) The proper question is whether the nature of the
structure’s composition is such that a reasonable person would expect some protection
from unauthorized intrusions. (Woods, at p. 349; Brown, at p. 1496.)
       The court in Woods rejected the defendant’s argument that the apartment complex
was not a security complex, tenants had no expectation of privacy in the laundry room,
and tenants would expect to find strangers in the laundry room. Woods reasoned that the
strangers whom apartment tenants would expect to find in the laundry room would be
fellow tenants, not burglars. (Woods, supra, 65 Cal.App.4th at p. 349.) Woods held that
under the reasonable expectation test, the laundry room was an area tenants would expect
protection from unauthorized intrusions. (Id. at p. 350.) Woods concluded that the safety
and privacy expectations surrounding an inhabited dwelling house were present in the
common area laundry room of the apartment complex. (Ibid.)
       Appellant attempts to distinguish the apartment complex described in Woods from
the one he burglarized, emphasizing the fact that unlike the laundry room in Woods, the
laundry room here was not locked. 5 According to appellant, locking the doors implied
limited access to the laundry room. Appellant further argues that the five laundry rooms
were unlocked and detached from the rest of the complex and were not covered by a
single roof. These latter factual contentions, however, are not established by, and cannot
be reasonably implied from, the police reports.




5       Appellant makes the further factual contention that the apartment manager stated
that the laundry rooms were routinely kept unlocked. This point is inferable, but not
clearly established, from the police reports. Defense counsel argued this factual point to
the court. For the purposes of our analysis, we assume the five laundry rooms in the
apartment complex were not locked.


                                             8.
       Assuming arguendo that the apartment complex here was a large, open facility,
without the doors to the laundry rooms routinely locked and the laundry rooms not under
a single roof, we still find this case analogous to Woods. Whatever the configuration of
the five laundry rooms in the Summertrace Resort Apartments, appellant was not
recognized by Maxwell as a resident or former employee of the apartments. Without
evidence in the record to the contrary, we can assume that the laundry rooms were for
residents of the apartments and not for use by the general public. We note that the
apartment complex described in Woods also was not a security complex. (Woods, supra,
65 Cal.App.4th at p. 349.)
       The public policy of protecting residents from burglars while doing their laundry
is no different in this case than it was in Woods. Although there are apparent structural
differences between the apartment complex in Woods and the apartment complex here,
the risk of violent confrontations between burglars and tenants, dwelling in the complex
and using its common laundry facilities, is the same. This is so whether we apply the
object test for an inhabited dwelling or the reasonable expectation test.
                                      DISPOSITION
       The judgment is affirmed.




                                             9.
