Filed 5/29/14 P. v. Sierra CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057687

v.                                                                       (Super.Ct.No. FVI1200546)

EMILIANO MADRIGAL SIERRA,                                                OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata,

Judge. Affirmed with directions.

         Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, William M. Wood, and Meagan J.

Beale, Deputy Attorneys General, for Plaintiff and Respondent.



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                                               I

                                      INTRODUCTION

       Defendant Emiliano Madrigal Sierra was apprehended in the act of stealing from a

residential garage. A jury convicted defendant of residential burglary with an

enhancement for a violent felony. (Pen. Code, §§ 459 and 667.5, subd. (c).)1 His prior

convictions were found true by the court after defendant waived a jury trial. (§§ 186.22,

subd. (a); 667, subds. (b)-(i); and 1170.12, subds. (a)-(d).) The court sentenced defendant

to 22 years in prison. Defendant had rejected an offer of two years.

       On appeal, defendant contends there was insufficient evidence to support his

burglary conviction and the court erred by not instructing the jury on trespass. Defendant

also argues the court erred in denying his Romero2 motion. We agree with the parties

that one year of the 22-year sentence should be stricken. Otherwise, we affirm the

judgment.

                                               II

                                 STATEMENT OF FACTS

       On March 2, 2012, defendant entered the open garage door of the victim’s

attached residential garage. Defendant made a lot of noise, trying to remove a Shop-Vac

       1   All further statutory references are to the Penal Code.

       2   People v. Superior Court (Romero) (1996) 13 Cal.4th 497.



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vacuum cleaner from underneath a workbench and banging it against a parked car. When

the victim heard the noise, she checked the garage and confronted defendant, whom she

did not recognize. He claimed that he “wanted to borrow a ladder because he saw a bird

on [her] roof that had fallen off.”3

       When the victim told defendant to leave, he left the garage and stood in her

driveway. She then told him to leave her property and defendant crossed the street and

stood in a nearby driveway. The victim called her husband and the police. The victim’s

husband arrived minutes later, slammed on the brakes of his car in front of defendant and

confronted him. Defendant apologized, saying, “‘I’m sorry. I won’t do that again.’” The

husband heard defendant tell police that he was looking for his ball in the garage.

                                            III

                              SUFFICIENCY OF EVIDENCE

       Although defendant admits that he entered a home, within the meaning of section

459, he denies that he formed the required larcenous intent before entering the garage,

and therefore his conviction for burglary is not supported by substantial evidence. We

disagree.




       3 According to the preliminary hearing and the probation report, defendant lived
across the street from the victims on Balsam Avenue. Defendant kept pet quail.



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       “‘On appeal we review the whole record in the light most favorable to the

judgment to determine whether it discloses substantial evidence—that is, evidence that is

reasonable, credible, and of solid value—from which a reasonable trier of fact could find

the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is

the same in cases in which the People rely mainly on circumstantial evidence. [Citation.]

“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial

evidence is susceptible of two interpretations, one of which suggests guilt and the other

innocence [citations], it is the jury, not the appellate court which must be convinced of

the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably

justify the trier of fact’s findings, the opinion of the reviewing court that the

circumstances might also reasonably be reconciled with a contrary finding does not

warrant a reversal of the judgment.”’ [Citations.]” [Citation.]’ [Citations.] The

conviction shall stand ‘unless it appears “that upon no hypothesis whatever is there

sufficient substantial evidence to support [the conviction].”’ [Citation.]” (People v.

Cravens (2012) 53 Cal.4th 500, 507-508; People v. Rodriguez (1999) 20 Cal.4th 1, 11-

12.)

       Section 459 defines the crime of burglary as entry into “any house, room,

apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other

building . . . with intent to commit grand or petit larceny or any felony . . . .” Defendant

concedes that his entry—and the status of the attached garage as part of the

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house—fulfill all required material elements of the statute, with the exception of his

criminal intent to commit larceny.

       When the victim heard noises coming from her garage, she investigated and

discovered defendant trying to take the vacuum. Defendant variously claimed to be

looking for a ladder, a bird, and ball. These fabricated excuses are not corroborated by

any evidence at trial. Based on defendant’s attempt to take the vacuum and his

implausible excuses, a trier of fact could reasonably conclude that defendant entered the

garage intending to steal and that defendant possessed the required criminal intent for a

burglary.

       Appellate courts must accept the logical inferences the jury might have drawn to

support its verdict. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

Accordingly, defendant must show there was not sufficient substantial evidence based on

any hypothesis to support the verdict. (People v. Cravens, supra, 53 Cal.4th at p. 508.)

       Here the victim caught defendant trying to remove a vacuum from her garage.

Defendant’s alternative—and inconsistent—explanations about balls and birds did not

raise a reasonable doubt about whether he had an innocent purpose when he entered the

garage without permission. It is entirely reasonable that the jury concluded defendant

was trying to steal the vacuum and that he entered the garage intending to steal, even if

the vacuum was not his initial target. It is also rank speculation that defendant did not

intend to steal because he did not try to take any other tools or items from the garage.

                                             5
Based on the facts and reasonable inferences, the jury could conclude that defendant

entered the garage intending to steal and he had the required criminal intent to support a

burglary conviction under section 459.

                                              IV

                                         TRESPASS

       Defendant next asserts that the trial court erred by failing to instruct the jury on the

material elements of trespass—although trespass is not a necessarily included offense of

burglary. (People v. Pendleton (1979) 25 Cal.3d 371, 382.) We hold there was no error.

       In People v. Birks (1998) 19 Cal.4th 108, the court held that a trespass instruction

is not required when burglary is charged and cannot be given in a burglary case unless the

prosecutor consents. (Id. at p. 136.) Birks expressly requires the trial court to use a

“strict elements” test when deciding whether to instruct on necessarily included offenses.

(Id. at p. 130.) Birks also limits the duty to instruct and refuses to extend the duty, or

even the permissive ability to instruct, to any other uncharged offenses without

prosecutorial consent. (Id. at p. 133.) In this case, as defendant recognizes, it was

apparently the prosecutor’s strategy to argue that a trespass occurred but to concentrate

on the more serious crime of burglary. Nevertheless, even without defendant requesting

an instruction below, defendant poses an independent duty exists to instruct on an

uncharged, non-included offense. Defendant’s proposition directly contradicts Birks and

we summarily reject it.

                                              6
       Furthermore, even if the trial court erred, the error was harmless because it is not

“reasonably probable” defendant would have received a more favorable result without the

error. (People v. Watson (1956) 46 Cal.2d 818, 836.) As defendant states correctly this

case hinged on criminal intent, which defendant contends was a close call. If there truly

was no evidence beyond a reasonable doubt of criminal intent, defendant would have

been acquitted. The jury necessarily found that defendant had the required criminal

intent because it found him guilty of burglary.

       This is not a case involving a reprehensible crime which threatened to have an

inflammatory effect upon the jury. Instead, the evidence showed defendant tried to steal

a vacuum from his neighbor’s garage without resorting to violence or force. There was

no evidence of jury prejudice or bias against defendant. In a clear case of burglary, the

prosecution had discretion to charge only that offense. Defendant’s criminal intent was

proved beyond a reasonable doubt and there is no evidence that failing to instruct on

trespass was prejudicial.

                                             V

                                   ROMERO MOTION

       Defendant next asserts the trial court abused its discretion when it refused to

dismiss defendant’s prior strike conviction, which would result in a shorter prison

sentence of 15 years. Defendant’s burden is to prove the trial court made an irrational or

arbitrary decision. (People v. Carmony (2004) 33 Cal.4th 367, 375-376.) Additionally,

                                             7
there is a strong legal presumption that a sentence conforming to the Three Strikes statute

is “both rational and proper.” (Id. at p. 378.) “In light of this presumption, a trial court

will only abuse its discretion in failing to strike a prior felony conviction allegation in

limited circumstances. For example, an abuse of discretion occurs where the trial court

was not ‘aware of its discretion’ to dismiss [citation], or where the court considered

impermissible factors in declining to dismiss [citation]. Moreover, ‘the sentencing norms

[established by the Three Strikes law may, as a matter of law,] produce[] an “arbitrary,

capricious or patently absurd” result’ under the specific facts of a particular case.

[Citation.]” (Ibid.) Although the trial court has no obligation to articulate its reasoning

when declining to strike a serious felony conviction, the trial court is required to take into

account the circumstances of the current felony as well as the prior serious felony

convictions. (People v. Williams (1998) 17 Cal.4th 148, 161.)

       The probation report listed 19 criminal offenses between 1995 and 2011, involving

theft, drugs, gangs, and weapons. The trial court decided that the People “laid out clearly

the difficulties with [defendant] and his ability to follow what ordinary people can do,

and that’s not break the law. He has accumulated a number of felony offenses, not only

in this county, but in Orange County, in Los Angeles County. It seems wherever he goes

he commits some kind of theft offense. But the current case being a theft offense is a

very serious theft offense.”




                                               8
       The trial court’s decision refusing to dismiss the serious felony conviction was not

arbitrary but specifically based on permissible factors. There is no evidence that the trial

court based its decision on impermissible factors or that the sentence was patently absurd

as a matter of law. Based on this reasoning, the trial court properly declined to exercise

its authority to dismiss the strike.

                                             VI

                            THE SENTENCE ENHANCEMENT

       The trial court sentenced defendant to two enhancements based on a single

conviction under section 186.22, subdivision (a). The first, a five-year enhancement

under section 667, subdivision (a), was imposed because he committed a serious felony.

The second, a one-year enhancement under section 667.5, subdivision (b), was imposed

because of the prison term resulting from his serious felony conviction. As defendant

points out and the Attorney General concedes, the trial court erred in imposing both a

consecutive five-year enhancement under section 667, subdivision (a)(1), and the one-

year enhancement under section 667.5, subdivision (b). (People v. Perez (2011) 195

Cal.App.4th 801, 805, citing People v. Jones (1993) 5 Cal.4th 1142, 1150-1153.) We

agree the one-year sentence enhancement was erroneously imposed and must be reversed.




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                                             VII

                                      DISPOSITION

       The portion of the judgment imposing on defendant a one-year enhancement for a

prison term prior under section 667.5, subdivision (b), is stricken. The trial court is

directed to prepare an amended abstract of judgment in accordance with this disposition

and deliver it to the Department of Corrections and Rehabilitation. In all other respects

the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                CODRINGTON
                                                                                            J.

We concur:


HOLLENHORST
          Acting P. J.


RICHLI
                            J.




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