Opinion
C084470
06-14-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL CHARLES PAINE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE019541)
After defendant Daniel Charles Paine stole an iPad from the victim's garage, a jury found him guilty of first degree burglary and found true an allegation a person was present in the residence. On appeal, defendant contends (1) insufficient evidence supported the person present finding; (2) a jury instruction reduced the prosecution's burden to prove the garage was part of the residence; (3) the court abused its discretion in allowing the prosecution to amend the information just before trial; and (4) the court erred in instructing the jury on flight. We will affirm.
BACKGROUND
The victim's attached garage connects to the rest of her home through a door. The morning of the incident, the victim woke and dressed for work. Her boyfriend was in the house with her. Towards 6:00 a.m., she opened the garage door and put her lunch, bag, and iPad in her car parked in her garage. She then went back to brush her teeth and get her purse.
About 10 minutes later, she returned to the garage to find her bag and iPad gone. She was able to use her iPhone to track her iPad to a vacant building. She called 911.
A firefighter dispatched to the vacant building briefly saw a man's head (the nose up) looking over the top of the building's roof ledge. The firefighter immediately told an officer who used his squad car's "loud" PA system to announce several times for defendant to surrender and come down. No one responded.
No one but defendant was ultimately found on the rooftop.
Several officers then used a fire department ladder to reach the roof. There, they found an iPad on a rooftop air-conditioning unit. The officers again announced for anyone up there to come out. No one came. The officers started searching several open attic spaces on the roof.
During the search, an officer heard noises and alerted another officer. The two officers again ordered anyone there to make their presence known. Defendant came out of the attic space and was arrested.
Defendant later told an officer he had been riding his bike when he saw some pots with a "free" sign next to the victim's house. As he went to get the pots, he saw a bag and an iPad in the grass nearby. He took the bag and iPad and returned to the rooftop where he had been sleeping. Defendant later told the victim, "I'm sorry, I don't know what I was thinking."
At trial, that officer was asked if he had received a report of a residential burglary that morning. He responded, "I wouldn't phrase it as a residential, a vehicle burglary."
The jury found defendant guilty of first degree burglary (Pen. Code, § 459) and found a person present in the residence during the commission (§ 667.5, subd. (c)(21)). The trial court granted defendant probation and ordered him to serve one year in jail.
Undesignated statutory references are to the Penal Code.
I
The Person Present Finding
Defendant contends the person present finding must be reversed for insufficient evidence. He argues an unoccupied garage, used solely to house a vehicle and not functionally connected to the home, is not part of a "residence" as a matter of law. We disagree.
Because the risks stemming from burglary are greater when a resident is present, section 667.5 imposes additional sanctions if a person is present during the burglary. (People v. Harris (2014) 224 Cal.App.4th 86, 91 (Harris).) Section 667.5 defines a violent felony to include a first degree burglary where "it is charged and proved that another person, other than an accomplice, was present in the residence." (§ 667.5, subd. (c)(21).)
"Present in the residence" means someone other than the burglar or accomplice, "has crossed the threshold or otherwise passed within the outer walls of the house, apartment, or other dwelling place being burglarized." (People v. Singleton (2007) 155 Cal.App.4th 1332, 1337, 1339 [victim not present during the burglary where he stood outside his apartment, though in a restricted common area of the apartment complex].) A dwelling includes structures that are "functionally interconnected with and immediately contiguous to other portions of the house." (Harris, supra, 224 Cal.App.4th at p. 90; see also People v. Debouver (2016) 1 Cal.App.5th 972, 981 [secured underground garage sharing a common roof and integrated into the apartment complex was part of the residence].)
Here, the garage was part of the residence because it was attached to the main residence and a doorway connected the two. (See People v. Moreno (1984) 158 Cal.App.3d 109, 112 [a connecting door is one method of demonstrating a garage is an attached and integral part of a dwelling].) With the victim in the main residence and defendant in the garage — both within the outer walls — section 667.5's risks were at hand, and the person present finding was well supported.
Defendant nevertheless points to Harris, supra, 224 Cal.App.4th 86 to argue the victim's garage was not part of the residence because it was used solely to park a car. Harris upheld a person present finding where the victim's attached garage was burglarized while the victims were home. (Id. at p. 91.) The attached garage in Harris lacked direct access to the main residence, but it had been converted to a guestroom. (Id. at p. 90.) The Harris court concluded the garage was part of the main residence, explaining an interior separating wall does not place the victims outside their home. (Id. at pp. 90-91.) It added, " '[S]imple logic would suffer were we to leap over this interrelationship to a conclusion that a garage is not part of a dwelling because no inside entrance connects the two.' " (Id. at p. 90.)
Defendant argues the Harris holding, that the garage was part of the residence, could only rest on the garage having been converted to a guest house and not on the fact that it shared a roof with the main residence. We disagree. Whether a garage contains a car or a bed does not alter the risks associated with an intruder entering the garage while the victim is under the same roof. Here, a doorway connected the garage to the rest of the house.
We conclude the person present in the residence finding was well supported.
II
Defendant's Requested Jury Instruction
Defendant challenges the trial court's refusal to give a pinpoint instruction on the difference between "residence" and "dwelling." He argues the refusal reduced the prosecution's burden to prove the place burglarized was a residence. He further argues the jury should have been told to decide whether the garage was part of the residence for purposes of the person present allegation. We disagree.
At trial, defense counsel, citing Singleton, supra, 155 Cal.App.4th 1332, asked for an instruction defining the distinction between a "residence," for purposes of a person present finding, and a "dwelling," for purposes of a first degree burglary finding. The trial court denied the request. The court ultimately instructed the jury as to the person present finding that it must, "decide whether the People have proven the additional allegation that another person, not an accomplice, was present in the residence during the commission of the burglary." It also instructed, as to the burglary count, that "[a] house includes any garage that is attached to the house and functionally connected with it."
The People argue the contention is forfeited because defense counsel did not submit a proposed instruction. We conclude defense counsel's reference to the definition in Singleton, supra, 155 Cal.App.4th 1332 sufficed to preserve the issue.
The trial court must instruct the jury on the general principles of law that are necessary for the jury's understanding of the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.)
Here, the request to instruct on the difference between a residence and a dwelling was properly denied because it was not germane to the case. An inhabited dwelling has been more broadly defined than a residence and can include, for example, a weekend fishing retreat, a hospital room, or jail cell. (Singleton, supra, 155 Cal.App.4th at pp. 1338-1339.) Here, the burglary target is a house, making the distinction between a residence and dwelling irrelevant. (See People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1107 [noting courts have construed residence and inhabited dwelling house to have equivalent meanings].)
Further, defendant's argument the jury should have been told to decide whether the garage was part of the residence is unavailing. As to the burglary count, the jury was instructed a house includes a garage that is attached and functionally connected with the house. Thus, in finding defendant guilty of first degree burglary, the jury necessarily found the garage attached and functionally connected with the house — and therefore part of the residence. (See Harris, supra, 224 Cal.App.4th at p. 90 ["A structure is part of a dwelling if it is functionally interconnected with and immediately contiguous to other portions of the house"].)
We conclude the trial court properly denied defendant's requested instruction.
III
Amending the Information
Defendant contends the trial court abused its discretion in permitting the prosecution to amend the information to include the person present allegation. He argues the amendment, made just before jury selection, compromised his substantial rights by undermining his anticipated defense, forcing his counsel to argue inconsistent theories: defendant found the iPad at the bottom of the driveway and did not enter the garage, but if he did, the garage was not part of the residence. We conclude the trial court did not abuse its discretion.
Shortly before jury selection, the prosecutor moved to amend the information to include the person present allegation. Defense counsel argued the request was untimely, lacking in good cause, and prejudicial, requiring her to argue inconsistent theories. The prosecution responded the amendment was not unexpected based on the preliminary hearing testimony.
Preliminary hearing testimony indicated the victim was home when her iPad was taken from her car, parked in her garage. --------
The trial court granted the request, noting defendant's substantial rights would not be compromised. It would not take "great legal gymnastics" to argue both defendant was not responsible for the taking and the People have failed to prove the person present allegation. It further found the amendment was not a factually enhancing allegation or a new charge, and there was no nefarious intent or motive to ambush the defense.
A trial court may permit amendment of the information at any stage of the proceedings provided the amendment does not change the charge to one not shown by evidence at the preliminarily hearing and provided the substantial rights of the defendant are not prejudiced. (People v. Hamernik (2016) 1 Cal.App.5th 412, 424.) "We review the trial court's decision for abuse of discretion." (People v. Miralrio (2008) 167 Cal.App.4th 448, 458.)
Here, the trial court acted within its discretion in allowing the prosecution to amend the information to include the person present allegation. There is no suggestion the amendment was made for an improper purpose. The amendment was not unexpected; it was based on the preliminary hearing evidence that the iPad was stolen from the victim's garage while the victim was home. And the amendment did not force trial counsel to argue inconsistent positions. Defendant's anticipated defense, that he never entered the garage but found the iPad on the driveway, addressed both the underlying offense and the person present allegation. Further, any argument as to whether the garage was attached and functionally connected applied equally to the first degree burglary and person present allegations.
We conclude the trial court acted within its discretion in allowing the amendment.
IV
Flight Instruction
Defendant contends the trial court erred in instructing the jury on flight from the crime, CALCRIM No. 372. He argues his leaving the scene was not especially probative of his guilt. We conclude the trial court did not err.
At the prosecution's request, the jury was instructed using CALCRIM No. 372 that: "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
Defense counsel objected, arguing insufficient evidence supported the instruction. She argued leaving the residence was a completion of the burglary and not an indication of consciousness of guilt. During closing, the prosecution argued, "flight also confirms our common sense that somebody who commits a crime will flee."
The trial court must instruct on flight from the crime "where evidence of flight of a defendant is relied upon as tending to show guilt." (§ 1127c.) A flight instruction is generally proper where the defendant leaves the crime scene under circumstances suggesting his or her movement was motivated by consciousness of guilt. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) But flight does not require running from the scene or reaching haven, rather only acting to avoid observation or arrest. (Ibid.)
Here, the instruction was not error given defendant's conduct on the building roof before his arrest. After a firefighter saw someone briefly look over the ledge of the roof, defendant was ordered by PA system to surrender. He did not. When officers reached the roof, they again ordered defendant to come out. He did not. While searching the roof, officers heard a sound and again ordered defendant to come out. Given those attempts to evade, the instruction was proper. (See People v. Sanchez (1939) 35 Cal.App.2d 231, 237 ["the fact that his flight was from the presence of the threatening police and not from the looted premises does not diminish its efficacy as evidence or reduce its weight as proof"]; People v. Gryszkiewicz (1948) 88 Cal.App.2d 230, 233, 237 [flight existed where the defendant saw an officer and then jumped on a streetcar].)
Defendant, nevertheless, maintains no evidence indicates he heard the police or knew of their presence before he finally responded to orders to come out. We disagree. Circumstantial evidence indicates he did. A figure was seen momentarily looking over the ledge of the roof when officers arrived and no one but defendant was found in the building. The officers used a loud PA system to announce their presence several times. And on the roof officers again announced their presence. From that, it could be reasonably inferred defendant knew of the officers' presence and heard their orders to come out.
Accordingly, we conclude the trial court did not err in instructing the jury on flight.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
DUARTE, J.