Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06SF0677, M. Marc Kelly, Judge.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury found defendant Brian Michael Crosby guilty of first degree residential burglary (Pen. Code, § 459; all statutory citations are to the Penal Code unless indicated), concealing stolen property (§ 496, subd. (a)), and possession of marijuana (Health & Saf. Code, § 11357, subd. (b)). He contends the trial court erred by denying his request for self-representation, failing to declare a mistrial because the prosecutor commented on his failure to testify, and finding a 1991 Florida conviction for burglary qualified as a strike under the Three Strikes law and as a prior serious felony under section 667, subdivision (a)(1). For the reasons expressed below, we reject defendant’s attack on his burglary conviction, but conclude the record contains insufficient evidence to sustain the trial court’s finding concerning the 1991 Florida burglary conviction. Accordingly, we reverse the judgment for a possible retrial on the prior conviction allegation.
I
Factual and Procedural Background
Around 6:00 p.m. on July 17, 2006, residents of a Laguna Hills condominium returned after work and discovered their home had been burglarized. They noticed someone had moved an outdoor grill away from the kitchen window, removed the window screen, and jammed the window shut so that it could no longer open. The intruder had confined the family dog to the master bedroom, taken a shower in a downstairs bathroom, stuffed muddy bath towels under the sink, and left multiple beverage cans and bottles on a coffee table. The burglar also left open a bedroom sliding glass door leading outside to a small, unfenced patio, left a hat and a T-shirt rolled up under a courtyard chair, and used an outside broom to sweep leaves into a pile on the patio. Items belonging to the residents had been stolen from various rooms of the house, including jewelry, cameras, a can of deodorant and toothpaste, a knife, and a red and black backpack. Defendant’s DNA was found on the beverage containers.
Around 6:20 p.m., a neighbor spotted a disheveled defendant, stumbling along a path in the complex, snooping and “eyeballing everything.” Defendant asked assertively to use the neighbor’s mobile phone. His speech was abnormal and nonsensical, which the neighbor believed was caused by something other than inebriation.
A deputy sheriff attempted to stop defendant a few blocks north of the condominium complex, but defendant ran away when the deputy approached. Defendant eventually was detained when he stopped running after dropping something. He carried the red and black backpack, which contained property stolen in the burglary. The deputy found a small amount of marijuana in defendant’s sock. The deputy did not smell alcohol on defendant, but defendant appeared to be under the influence of some substance based on his excited state and profuse sweating. Defendant told the deputy one of the cameras belonged to him and another to a friend, but he could not identify the friend and did not know how to use the cameras.
Following a trial in December 2007, a jury found defendant guilty of the offenses listed above. Defendant waived a jury on the prior conviction allegations and the trial court found defendant had suffered two prior Three Strikes convictions (§ 667, subds. (d), (e)(2); § 1170.12, subds. (b), (c)(2)), two serious felony convictions (§ 667, subd. (a)(1)), and six prior prison term convictions (§ 667.5, subd. (b)). The court dismissed one of the strikes (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530) and imposed an 18-year prison sentence comprised of an eight-year term for burglary (the four-year midterm doubled pursuant to the Three Strikes law) and two five-year terms for the prior serious felonies under section 667, subdivision (a). The court struck, stayed or suspended terms for the other convictions and enhancements.
II
Discussion
A. The Trial Court Did Not Err When It Denied Defendant’s Request for Self-Representation
Defendant contends the trial court committed reversible error when it denied his request to represent himself (Faretta v. California (1975) 422 U.S. 806 (Faretta)) as untimely. Defendant argues his request was timely because he asserted his Faretta rights before the jury had been impaneled. He argues that granting his request would not have disrupted the trial because he did not ask for a continuance. We do not find the contention persuasive.
The district attorney filed the original complaint July 19, 2006, and the court appointed the public defender to represent defendant. One deputy public defender represented defendant from August 2006 until July 2007, when the case was reassigned to a second deputy. The court continued the trial date several times. On the day set for trial, November 27, 2007, defendant submitted a handwritten note to the trial court complaining about his lawyer, which the court construed as a request to remove his appointed counsel. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) The court conducted a hearing outside the presence of the prosecutor. Among other things, defendant complained counsel had ignored several potential witnesses who could testify about his mental illness and the side effects he suffered from taking his medication. After counsel informed the court why she believed these witnesses would not help defendant’s case and described her pretrial investigation, the court denied defendant’s Marsden motion. The court conducted jury voir dire for the rest of the day and then adjourned.
The following morning, before voir dire had resumed, defendant asked about representing himself. The court explained to defendant, who did not have formal legal training, he would be going up against a skilled prosecutor and the stakes were high. The court also stated it believed any request was untimely and it was not inclined to grant a continuance because the case had started, prospective jurors had been questioned, and the prosecutor’s witnesses were present. Defendant stated he did not understand “how the fact that he was under four months of constant psychiatric care right before this crime, before I was let out, every day I was seeing psychiatrists on major tranquilizers or anti-psychotics,... doesn’t affect this case....”
Defendant’s lawyer responded the witnesses defendant referred to worked at an outpatient clinic defendant never attended, and she and her client had a difference of opinion on strategy. The court asked defendant if he was making a request to represent himself. Defendant replied he would like to get the witnesses and if counsel was “not willing to do it, if it doesn’t seem it is necessary, I would like to have some way to do that.” Elaborating, defendant stated, “I just want those witnesses, I feel they are vital to the case. I have been trying 16 months to get them, contact them, and then right before trial they tell me they are not necessary. Why didn’t she tell me that five months ago....” When the court asked if defendant was requesting to represent himself, defendant responded, “I am, I will just represent myself then, if she doesn’t think these things are important. I think that’s the whole basis of my case.”
After considering the matter, the trial court concluded defendant’s request was untimely under a weighing process that included consideration of the quality of his current representation, defendant’s prior proclivity to substitute counsel, the reasons for the request, the stage of the proceedings, and the disruption self-representation would cause. The court found defendant had excellent trial counsel, defendant had complained about the first deputy public defender who represented him, and defendant made the request because he disagreed with his lawyer’s trial tactics and strategy. The court cited the “potential for disruption” given the request came after pretrial motions and during jury selection. The court also noted defendant might be prejudiced if jurors saw defendant “suddenly... sitting by [himself]” after counsel had been conducting the voir dire.
A criminal defendant has the right under the Sixth and Fourteenth Amendments to waive the right to counsel and to represent himself or herself. (Faretta, supra, 422 U.S. at p. 819 [“[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense”].) “A trial court must grant a defendant’s request for self-representation if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers.” (People v. Valdez (2004) 32 Cal.4th 73, 97-98; Faretta, at p. 835.)
A defendant, however, must invoke the right to self-representation a reasonable time before the start of trial. (People v. Windham (1977) 19 Cal.3d 121, 127 128 (Windham) [“in order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial”].) If a defendant asserts the right to self-representation on the eve of trial or after trial has commenced, the trial court has discretion to deny the request. (Id. at p. 128 [“once a defendant has chosen to proceed to trial represented by counsel, demands by such defendant that he be permitted to discharge his attorney and assume the defense himself shall be addressed to the sound discretion of the court”]; People v. Clark (1992) 3 Cal.4th 41, 99-100 [trial court had discretion to deny motion for self-representation made on the eve of trial]; People v. Frierson (1991) 53 Cal.3d 730, 742 [motion for self-representation made on the eve of trial is untimely and therefore subject to the trial court’s discretion]; People v. Rudd (1998) 63 Cal.App.4th 620, 625-626 [motion untimely when made on the Friday before a trial scheduled to begin the following Monday]; People v. Wilkins (1990) 225 Cal.App.3d 299, 303 [request to proceed in propria persona made on the eve of trial is untimely].)
Defendant relies on the per curiam opinion in People v. Tyner (1977) 76 Cal.App.3d 352, 355 (Tyner). There, after the matter was called for jury trial but before impanelment of the jury, the defendant informed the court he wanted to “‘dismiss counsel’” and represent himself. (Id. at p. 354.) The defendant explained he was aware he faced “‘ten years to life,’” and that he was ready to proceed. (Ibid.) He explained his theory of defense was “‘mistaken identification’” and he was prepared to cross-examine adverse witnesses. (Ibid.) The trial court denied his request to “dismiss” the deputy public defender and to represent himself, stating the right to represent oneself did not apply “‘where it’s the day of trial....’” (Id. at p. 354, fn. 3.) Applying Windham, the appellate court reversed, explaining that “appellant’s motion for self-representation was made prior to trial and was not accompanied by any request for a continuance, [and] its grant would not have obstructed the orderly administration of justice. Therefore, we can only conclude appellant was denied his otherwise unconditional constitutional right of self-representation.” (Tyner, at p. 355; see also People v. Herrera (1980) 104 Cal.App.3d 167, 174-175.)
As the cases cited above illustrate, a request for self-representation on the “eve of trial” is addressed to the sound discretion of the trial court. This case is distinguishable from Tyner because here pretrial motions had been heard and jury selection had begun. “As a matter of constitutional law, common understanding, and common sense, ‘trial’ in a criminal case includes the critical stage of jury selection.... Hence, in the ordinary sense, a criminal jury ‘trial’ has ‘commenced’ at least from the time that impaneling the jury begins, regardless of when jeopardy attaches.” (People v. Granderson (1998) 67 Cal.App.4th 703, 707-708; People v. Concepcion (2008) 45 Cal.4th 77, 80.)
The trial court also could reasonably conclude defendant’s request was untimely because it would have required the court to continue the trial. As the California Supreme Court has explained, “In most of the cases finding a [Faretta] motion timely as a matter of law, no continuance would have been necessary.” (People v. Burton (1989) 48 Cal.3d 843, 854.) But unlike the defendant in Tyner, who made it clear he did not want a continuance and was ready to proceed with the trial, defendant asked to represent himself for only one reason: to call witnesses his lawyer had not subpoenaed for trial. Defendant therefore would have required a delay to secure the attendance of witnesses he deemed material to his defense. This would have resulted in rescheduling a trial that had begun and therefore would have undermined the public’s interest in the orderly and expeditious resolution of criminal cases. (Windham, supra, 19 Cal.3d at p. 128, fn. 5.) Under these circumstances, the trial court correctly found defendant made an untimely request for self-representation.
Defendant does not argue alternatively that even if his request was untimely, the court abused its discretion in denying his motion. Windham holds a trial court confronted with an untimely motion for self-representation must inquire into the reasons behind the request after considering several factors, including the quality of counsel’s representation, defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion. Here, the trial court expressly considered and weighed these factors in deciding whether to grant defendant’s Faretta motion. Consequently, we discern no abuse of discretion. (People v. Scott (2001) 91 Cal.App.4th 1197, 1206; see People v. Nicholson (1994) 24 Cal.App.4th 584, 593 [discretionary denials upheld on appeal generally involved a defendant’s need for continuance].)
B. The Trial Court Did Not Err in Denying Defendant’s Motion for Mistrial Following the Prosecutor’s Comment to the Jury
Defendant contends the trial court erred when it denied his motion for mistrial following a comment made by the prosecutor during her rebuttal argument. We agree with the trial court the prosecutor’s comment did not require a mistrial.
The primary contested issue in the case concerned defendant’s intent at the time he entered the condominium. Defendant’s trial counsel argued there was “circumstantial evidence which could reasonably be used to infer that when [defendant] went into that house, his intent wasn’t to take anything, maybe it was just to get something to eat and to get cleaned up. To feel human again.” Based on evidence of defendant’s intoxication, defendant’s lawyer also claimed his “actions and... behavior show that he did not have the ability to form the specific intent to enter that house to commit a theft when he entered....”
In rebuttal, the prosecutor argued defendant’s interaction with the neighbor and the deputy demonstrated defendant was coherent and rational. She also argued defendant demonstrated an intent to steal by entering through a window when no one was home, stealing valuable property from different rooms while ignoring items of lesser value, and departing through a back exit to avoid detection. Acknowledging defendant did some unusual things like raking up leaves and bolting the front door, the prosecutor stated, “Who knows exactly what happened, other than Mr. Crosby, but the circumstantial evidence shows you that he had the intent. He made all those decisions. He is able to talk to Deputy Perez and Mr. Semerau fine enough to obey commands, to answer questions, to talk about it.” (Italics added.) She also noted defendant showed consciousness of guilt by lying to the deputy about the ownership of the cameras.
Defendant’s counsel objected to the above italicized comment that only defendant knew what occurred, arguing the prosecutor committed misconduct and requested a mistrial. The trial court agreed the comment constituted Griffin error (Griffin v. California (1965) 380 U.S. 609 (Griffin), but found it curable. The court reread the prosecutor’s statement to the jury, informed the jury the statement constituted unintentional misconduct because it referred to the fact defendant did not testify and again reminded the jurors defendant had an absolute constitutional right not to testify. To emphasize the point further, the court again read Judicial Council of California Criminal Jury Instruction CALCRIM No. 355, which admonished the jury not to consider or discuss the fact defendant did not testify and instructed the jury to disregard the prosecutor’s statement.
CALCRIM No. 355, reads as follows: “A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.”
Griffin error occurs when the prosecutor makes a direct or indirect comment upon the failure of the defendant to take the witness stand. (People v. Hovey (1988) 44 Cal.3d 543, 572.) An indirect-comment on a defendant’s failure to testify occurs when a prosecutor refers to “uncontradicted” evidence and the defendant is the only person who could have refuted it. (People v. Johnson (1992) 3 Cal.4th 1183, 1229.)
We assume, for the sake of argument only, the prosecutor committed Griffin error. Because Griffin error violates a defendant’s constitutional right not to testify, we determine whether the error was prejudicial under the standard enunciated in Chapman v. California (1967) 386 U.S. 18 (Chapman), which held that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Id. at p. 24.) “[I]n determining whether prejudicial Griffin error has occurred, ‘we must focus upon the extent to which the comment itself might have increased the jury’s inclination to treat the defendant’s silence as an indication of his guilt. The risk that a comment will have this effect may become considerable if either the court [fn. omitted] or the prosecution [fn. omitted] “solemnizes the silence of the accused into evidence against him”... by telling the jury “that from the failure of [the defendant] to testify... the inferences from the facts in evidence [should] be drawn in favor of the State.”... A forbidden comment, however, is less likely to affect the “substantial rights” of a defendant... if that comment merely notes the defendant’s silence and includes no suggestion that, among the various inferences which might be drawn therefrom, those unfavorable to the defendant are the more probable....’” (People v. Vargas (1973) 9 Cal.3d 470, 478, italics omitted (Vargas), quoting People v. Modesto (1967) 66 Cal.2d 695, 713.)
In Vargas, a prosecutor attempted to bolster the testimony of a robbery eyewitness by arguing during rebuttal that the defense offered “‘no denial at all that [the defendants] were there....” (Vargas, supra, 9 Cal.3d at p. 474, italics omitted.) The court concluded the prosecutor committed Griffin error because “denial” suggests a personal response by the accused because “only defendant himself could ‘deny’ his presence at the crime scene.” (Vargas, at p. 476.) But the court concluded the error was harmless beyond a reasonable doubt because the prosecutor’s remark was brief and mild, and amounted to no more than an indirect comment upon defendant’s failure to testify without suggesting the jury should draw an inference of guilt from the defendant’s failure to take the stand. (Id. at p. 479.) The court observed that “cases which have considered the prejudicial effect of errors similar to those committed in the instant case almost uniformly have found those errors to be harmless.” (Ibid.; People v. Monterroso (2004) 34 Cal.4th 743, 770.)
Here, the prosecutor’s single remark was brief, mild, and indirect, and the prosecutor did not invite jurors to draw an inference of guilt from defendant’s failure to testify. (Vargas, supra, 9 Cal.3d at p. 479; cf. Chapman, supra, 386 U.S. at p. 19 [Griffin error prejudicial where prosecutor made 20 references implying the defendant was guilty based on defendant’s silence]; People v. Guzman (2000) 80 Cal.App.4th 1282, 1290 [Griffin error prejudicial where prosecutor referred four times to defendant’s failure to testify].) Moreover, the trial court admonished the jury to disregard the comment and again instructed them not to consider the fact defendant did not testify. We presume the jurors followed the court’s admonitions and instructions. (People v. Young (2005) 34 Cal.4th 1149, 1214.) Consequently, we conclude any conceivable error was harmless beyond a reasonable doubt.
C. The Evidence Was Insufficient to Establish Defendant’s 1991 Florida Burglary Qualified as a Serious Felony under California Law
Defendant challenges the sufficiency of the evidence to support the trial court’s finding his 1991 Florida conviction for burglary constituted a serious felony under the Three Strikes law and section 667, subdivision (a)(1). We agree no substantial evidence supports the trial court’s decision.
The Three Strikes law provides longer sentences for persons convicted of a felony who previously have been convicted of a violent felony, as defined in section 667.5, subdivision (c), or a serious felony, as defined in section 1192.7, subdivision (c). A defendant convicted of a felony who has one or more strikes must be sentenced for the current offense under the Three Strikes law. (§§ 667, subd. (f)(1), 1170.12, subd. (d)(1).) Also, when a person is currently convicted of a serious felony, an additional five-year prison term must be imposed for any prior conviction brought and tried separately that qualifies as a serious felony. (§ 667, subd. (a)(1).)
A conviction in another jurisdiction qualifies as a strike if it contains all of the elements required for a serious or violent felony in this state. (§ 667, subd. (d)(2); People v. Woodell (1998) 17 Cal.4th 448, 453.) Similarly, a conviction qualifies for the five-year enhancement under section 667, subdivision (a)(1), if it includes all the elements of a serious felony. The prosecution has the burden of proving beyond a reasonable doubt each element of a prior conviction used to enhance a defendant’s sentence. (People v. Williams (1990) 222 Cal.App.3d 911, 915.) In determining the truth of the existence of a prior felony conviction in another jurisdiction for invoking punishment under the Three Strikes and other enhancement laws, “the [trier of fact] may look to the entire record of the conviction to determine the substance of the prior foreign conviction; but when the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law.” (People v. Guerrero (1988) 44 Cal.3d 343, 354-355 (Guerrero).)
When a defendant challenges on appeal the sufficiency of the evidence to sustain the trial court’s finding the prosecution has proven all the elements of the enhancement, we must determine whether substantial evidence supports that finding. Substantial evidence is evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt. (People v. Elliot (2005) 37 Cal.4th 453, 466; People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.)
The information in the current case alleged defendant suffered a conviction for burglary of an “OCCUPIED DWELLING” in Florida on January 7, 1991. The prior was alleged as both a strike (§§ 667, subds. (d), (e)(2), 1170.12, subds. (b), (c)(2)) and a serious felony conviction (§ 667, subd. (a)(1)). To prove the enhancements, the prosecutor introduced (1) a Florida information alleging defendant unlawfully entered or remained in a dwelling owned by Phillip Rye on October 12, 1990, with the intent to commit grand theft in violation of Florida’s burglary statute (Fla. Stats., § 810.02 [§ 810.02]), knowingly obtained or used or endeavored to obtain or use property valued at $300 (Fla. Stats., § 812.014), and trafficked in or endeavored to traffic in property he knew or should have known was stolen (Fla. Stats., § 812.019(1)); (2) defendant’s written and signed no contest plea to burglary of a dwelling and trafficking in stolen property dated January 11, 1991; (3) an order directing restitution to Rye; (4) photographs of defendant; (5) a felony intake disposition notice; (6) and a judgment and sentencing report dated January 22, 1991. These documents show the burglary occurred at 2632 Providence Street, Rye owned the property, and defendant pleaded no contest to burglary of a dwelling. The court granted the prosecutor’s request to take judicial notice of a Lexis/Nexis printout of the Florida burglary statute defining the elements of the crime. (Fla. Stats., former § 810.02.)
Section 1192.7, subdivision (c)(1), defines “‘serious felony’” to include “any burglary of the first degree....” “Every burglary of an inhabited dwelling house... is burglary of the first degree.” (§ 460.) Under section 459, “‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.” “[I]t is the element of habitation, not the nature of the structure that elevates the crime of burglary to first degree.” (People v. Wilson (1992) 11 Cal.App.4th 1483, 1489.) The place need not be occupied at the moment of the burglary; it is inhabited if someone lives there, even though the person is temporarily absent. (People v. Villalobos (2006) 145 Cal.App.4th 310, 318 (Villalobos)[hotel or motel room rented for purposes of temporary habitation is inhabited]; People v. Fleetwood (1985) 171 Cal.App.3d 982, 987; People v. Cardona (1983) 142 Cal.App.3d 481, 483 [crucial element in determining whether house is an inhabited dwelling is whether anyone sleeps in it; premises uninhabited where residents had moved before burglary and no identifiable person currently used or intended to use house as sleeping quarters]; People v. Valdez (1962) 203 Cal.App.2d 559 [premises deemed uninhabited where vacated by one tenant and new tenant had not moved in].)
To determine whether the elements of an out-of-state prior would constitute a serious felony in California, we must look to the existing law of the foreign jurisdiction at the time defendant was convicted. (People v. Maldonado (1986) 186 Cal.App.3d 863, 865, fn. 1.) Florida’s Statute section 810.02 as it existed on the date of defendant’s violation in October 1990 defined burglary as “entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” Florida classified the burglary of a “dwelling,” as second degree burglary. Florida Statute section 810.011 defined “dwelling” to mean a “building or conveyance of any kind, either temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.” (Italics added.)
Florida Statute section 810.02 provided: “(1) ‘Burglary’ means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain. [¶] (2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender: [¶] (a) Makes an assault or battery upon any person. [¶] (b) Is armed, or arms himself within such structure or conveyance, with explosives or a dangerous weapon. [¶] (3) If the offender does not make an assault or battery or is not armed, or does not arm himself, with a dangerous weapon or explosive as aforesaid during the course of committing the offense and the structure or conveyance entered is a dwelling or there is a human being in the structure or conveyance at the time the offender entered or remained in the structure or conveyance, the burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Otherwise, burglary is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”
Under Florida case law, structures that would not constitute inhabited dwellings under California law qualify as dwellings under Florida’s burglary statute. For example, a motel room is a considered a “dwelling” without regard to whether it has been rented out at the time of the offense. (Herbert v. State (1983) 439 So.2d 971; cf. Villalobos, supra, 145 Cal.App.4th at p. 318 [only rented motel room considered inhabited].) A home under construction but nearing completion may constitute a dwelling. (Gonzalez v. State (1998) 724 So.2d 126, 127, fn. 1.) In State v. Bennett (1990) 565 So.2d 803, 805 (Bennett), the court concluded that an unoccupied mobile home unconnected to utilities and sitting on a sales lot qualified as a dwelling under section 810.011. The appellate court explained that under Florida law a structure designed for eventual human habitation qualifies as a dwelling. (Ibid.) In Perkins v. State (1996) 682 So.2d 1083 (Perkins), the Florida Supreme Court noted the Florida legislature had extended broad protection to buildings or conveyances of any kind that are designed for human habitation, and that an empty house in a neighborhood is extended the same protection as one presently occupied. (Id. at p. 1085.) “Occupancy is no longer a critical element under this [statutory] definition. Rather, it is the design of the structure or conveyance which becomes paramount. If a structure or conveyance initially qualifies under this definition, and its character is not substantially changed or modified to the extent that it becomes unsuitable for lodging by people, it remains a dwelling irrespective of actual occupancy. It is, therefore, immaterial whether the owner of an unoccupied dwelling has any intent to return to it.’” (Id. at p. 1084.)
The Attorney General contends when defendant entered his 1991 nolo plea to burglary, Florida defined the word “dwelling” in its burglary statute as an inhabited structure, which matched California’s definition. To support his argument, the Attorney General cites L.C. v. State (1991) 579 So.2d 783 (L.C.). There, the juvenile court found two juveniles committed burglary after they broke into a house that had been unoccupied for several months after the former inhabitant died. On appeal, the L.C. court noted that in 1982, the Florida legislature amended the burglary statute, section 810.02, to define a dwelling as a structure “designed to be occupied by people lodging therein at night....” (Id. at p. 784, fn. 1, original italics.) The court in L.C. concluded this amendment “was not intended to revoke the long-standing requirement in Florida law that a house be inhabited in order to be a dwelling.” (Id. at p. 784.) Nevertheless, the L.C. court affirmed the burglary findings because “[a] house which otherwise is a dwelling under common law does not lose that character where the only significant change in circumstances is that the sole occupant has died.” (Ibid.)
The L.C. decision, however, did not merely summarize settled Florida law on what constituted a dwelling under the Florida burglary statute. Rather, the decision injected more uncertainty on whether the Florida legislature’s amendment of its burglary statute retained the common law definition of a dwelling or statutorily expanded its reach to include uninhabited structures. Indeed, the L.C. decision acknowledged that Bennett, supra, 565 So.2d 803, seemingly reached a contrary conclusion. As discussed above, the Bennett court concluded that “an unsold mobile home on a sales lot, which was fully furnished but unoccupied and unconnected to utilities, would constitute a ‘dwelling’ for purposes of a burglary prosecution if the mobile home was designed for habitation.” (L.C., supra, 579 So.2d at p. 784, fn. 2.)
Thus, unlike California’s burglary statute, at the time of defendant’s nolo plea some Florida appellate courts did not require the burglarized structure to be inhabited when the burglary occurred. Rather, these Florida appellate decisions interpreted Florida’s burglary statute to impose criminal liability for burglary if the structure merely was “designed to be occupied by people lodging therein at night.” (Fla. Stats., § 810.011(2).) It therefore was unclear at the time defendant entered his nolo plea whether Florida’s burglary statute applied only to an inhabited dwelling or extended its reach to structures “designed” for habitation. Under these circumstances, we must assume defendant burglarized a structure that was not currently being used as a dwelling unless the record of conviction demonstrates the victim inhabited the residence. (Guerrero, supra, 44 Cal.3d at p. 355 [“when the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law”].)
The Florida Supreme Court resolved the uncertainty in 1996 when it disapproved L.C. and held the Florida burglary statute per section 810.02 unambiguously “extended broad protection to buildings or conveyances of any kind that are designed for human habitation.” (Perkins, supra, 682 So.2d at p. 1085.) In other words, Florida no longer required the burglarized structure to have been inhabited at the time of the burglary.
Here, the record of conviction shows an information was filed on November 2, 1990, charging defendant with burglary of a dwelling, grand theft, and dealing in stolen property. The information reflected that Rye owned the dwelling located at 2632 Providence Street, and that defendant unlawfully entered or remained in the dwelling and stole property valued at $300 or more. The record of conviction also shows that on January 7, 1991, defendant pleaded nolo contendere to burglary and was ordered to pay $500 restitution to “PHILLIP RYE — FROM WORK RELEASE — 2632 PROVIDENCE ST.”
The Attorney General argues these documents established the dwelling defendant burglarized was inhabited. We disagree. It may be a reasonable inference Rye inhabited the dwelling on Providence Street when the trial court ordered restitution, but it logically does not follow that Rye, or anyone else, inhabited the same dwelling at the time of defendant’s entry almost three months earlier. As the California Supreme Court explains, “A reasonable inference... ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶]... A finding of fact must be an inference drawn from evidence rather than... a mere speculation as to probabilities without evidence.’” (People v. Morris (1988) 46 Cal.3d 1, 21, overruled on another ground in In re Sassounian (1995) 9 Cal.4th 543, 544, fn. 5.) To conclude a current inhabitant lived at the same residence approximately three months earlier is an educated guess based on probabilities, but without evidentiary support. This does not constitute substantial evidence, “which has been defined as evidence that ‘reasonably inspires confidence and is of “solid value.”’” (Id. at p. 19.) We therefore reverse the trial court’s finding on the prior conviction allegation because the record of conviction fails to show defendant’s Florida conviction would qualify as a serious felony under California law.
D. Substantial Evidence Supports the Trial Court’s Finding the 1991 Florida Attempted Robbery Constituted a Serious Felony under California Law
The current information alleged defendant suffered a prior conviction for attempted robbery in Florida on January 7, 1991, and that it qualified as both a strike and a five-year enhancement under section 667, subdivision (a). The Florida record of conviction contains an information charging defendant with two counts of attempted robbery under Florida Statutes sections 812.13 and 777.04 and defendant’s plea of no contest to the counts. The trial court found the allegation to be true, struck the conviction for purposes of sentencing under the Three Strikes law (§ 1385), but imposed a five-year serious felony enhancement for the conviction (§ 667, subd. (a).)
In 1990, Florida Statutes section 812.13 provided, in relevant part: “‘Robbery’ means the taking of money or other property which may be the subject of larceny from the person or custody of another when in the course of the taking there is the use of force, violence, assault, or putting in fear.”
Defendant contends the prosecutor failed to introduce any evidence to establish the elements of attempt under Florida law. Defendant adopts his trial lawyer assertion the trial court had no “evidence in front of it as to what constitutes a[n attempted] robbery in [Florida], it may not be something substantial enough to constitute an attempt in the [S]tate of California.” We disagree.
Trial counsel also asserted Florida law did not require a specific intent to permanently deprive the owner of property, but the Florida information alleged an intent to permanently deprive, and the prosecutor argued statutory language permitting an intent to temporarily deprive was not added until 1992. Defendant does not repeat this contention on appeal.
The record of defendant’s 1991 Florida conviction for attempted robbery included an information charging defendant with two counts of attempted robbery in violation of Florida Statutes sections 777.04 and 812.13. Section 777.04, subdivision (a), provides that “[a] person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt....” The trial court therefore had before it the record of conviction specifying the Florida statute defining criminal attempts.
Florida courts “have interpreted an attempt to consist of two essential elements: 1) a specific intent to commit the crime; and 2) a separate overt, ineffectual act done toward its commission....” (Hutchinson v. State (1975) 315 So.2d 546, 548.) In California, “An attempt to commit a crime consists of a specific intent to commit the crime and ‘“a direct but ineffectual act done towards its commission.”’” (People v. Tillotson (2007) 157 Cal.App.4th 517, 535.) As is evident in the above comparison, a criminal attempt in Florida would constitute a criminal attempt in California. The trial court therefore did not err in finding defendant’s 1991 attempted robbery conviction constituted a serious or violent felony under California law.
III
Disposition
The judgment is reversed, and the matter is remanded for a new trial on the allegation that defendant’s 1991 Florida burglary conviction constitutes a serious felony under California law.
WE CONCUR: MOORE, ACTING P. J., IKOLA, J.
Florida Statute section 810.011 (“Definitions”), in pertinent part, provided: “As used in this chapter: [¶] (1) ‘Structure’ means a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.... [¶] (2) ‘Dwelling’ means a building or conveyance of any kind, either temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.”
Florida Statutes section 777.04 provides, in relevant part: “(1) A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt....”