Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA055290, Richard H. Kirschner, Judge.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
Following a court trial, appellant Carlos Santiago Semidey (Semidey) was found guilty of first degree residential burglary (count 2) (Pen. Code, § 459), and felony vandalism of a 1997 Honda Civic (count 3) (§ 594, subd. (a)). It had been further alleged that Semidey had suffered a prior serious or violent felony conviction under the “Three Strikes” law (§§ 667, subds. (b)–(i); 1170.12, subds. (a)–(d)), that he had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and that he had served a prior prison term within the meaning of section 667.5, subdivision (b). Semidey admitted a prior conviction of assault with a deadly weapon, which qualified as a “strike” under the Three Strikes law, as well as a prior serious felony conviction under section 667, subdivision (a)(1). With respect to the prior prison term allegation, both Semidey and the prosecutor agreed that the enhancement did not apply because he had been out of prison for more than five years before committing the instant offenses.
All further statutory references are to the Penal Code unless otherwise indicated.
Semidey was found not guilty of stalking (count 1) (§ 646.9, subd. (a)) and felony vandalism of a 2004 Honda Civic (count 4) (§ 594, subd. (a)).
The trial court sentenced Semidey to a term of nine years in prison, consisting of the low term of two years on count 2, doubled pursuant to the Three Strikes law, and a consecutive term of five years imposed pursuant to the section 667, subdivision (a)(1) enhancement. On count 3, the court imposed the low term of 16 months, plus a one year enhancement pursuant to section 667.5, subdivision (b), with the sentence to run concurrently with the sentence in count 2.
On appeal, Semidey contends: (1) there was insufficient evidence of his specific intent to commit a felony when he entered the victim’s apartment, requiring reversal of the first degree residential burglary conviction; (2) the trial court abused its discretion when it refused to strike Semidey’s prior strike; and (3) the sentence imposed for the prior prison term should be stricken. Respondent contends: (1) the enhancement imposed under section 667.5, subdivision (b), should be stricken because the parties had agreed that the enhancement did not apply; and (2) the case must be remanded for resentencing on count 3 because the trial court failed to impose sentence correctly under the Three Strikes law. We modify the judgment to strike the one year enhancement under section 667.5, subdivision (b), on count 3, and remand for resentencing in accordance with the Three Strikes law on count 3. The judgment is affirmed in all other respects.
BACKGROUND
In 2006, Gina Werdi and Semidey were involved in a relationship that lasted about seven months until she broke it off in early January 2007. During the relationship, Werdi gave Semidey a key to her apartment. He no longer had access to the apartment after their relationship ended.
On January 17, 2007, Werdi discovered that the antenna on her 1997 Honda Civic had been removed. On January 21, 2007, she discovered the back panel above the wheel frame on her car had been scratched.
On January 28, 2007, early in the morning, Werdi tried to put her key in her car door, but could not get it to go in.
On January 29, 2007, Werdi spoke to Semidey. She asked him why he was doing things to her car, “and I guess he was angry at me because we’re not together, we broke up, and like I said, again, it came out to the spirits where, ‘I can’t control this,’ and he... said he was doing it late at night.” He admitted damaging her car on the three occasions.
On January 29, 2007, Werdi returned from work to her apartment at about 7:45 p.m. She immediately smelled gas. She went into her kitchen and saw that two of the four gas burners on the stove were turned on. When she went into her bedroom, she discovered that her windows, which she had never opened before, were “completely opened.” She became scared and called a girlfriend. Werdi’s girlfriend urged her to call the police.
The record does not indicate whether the burners were ignited. It is reasonable to infer from the presence of the gas smell that at least one of the burners was not ignited.
Werdi suspected at that point that Semidey had been in her apartment because no one else had access. She called the police. She had the police drive her to a friend’s house where she stayed that evening.
Semidey called Werdi that evening, “acting really nervous.” She told him she knew he had been in her apartment and that she had notified the police. She testified further: “[H]e told me he was going to return my key. And I told him he cannot come in. He said he was going to leave it outside the door. And he was really nervous and scared and said, ‘I don’t know. Something is happening to me. I don’t know what it is. I can’t control it.’ And he told me that he had put some dye in my shampoo, that I didn’t know about, obviously, and he said he was going to come... put the key outside. So when he came and put the key outside my door, there was three of my underwears, which I didn’t know he had stolen, and the key.”
During their phone conversation, Semidey admitted he had been in the apartment, “and he said he would have stood there trying to harm me more, but he decided not to.” Werdi testified that she did not recall Semidey mentioning anything about killing her or what he might do with a weapon or saying anything about a gun. He did say, “[t]he spirits are controlling me. I can’t stop them, and I don’t know what to do.” On cross-examination, she testified that he said he wanted to take his life away and she was comforting him. She also recalled he said: “You’re lucky. I could have done something worse, but I didn’t.” She remembered that he said “I was going to wait for you in the shower until you got home, but I didn’t.” Werdi further testified: “I—I don’t think he had a gun, but I think he mentioned that, you know, he was going to pull a gun and wait for me in the shower.”
Werdi testified that when she originally moved into her apartment and did not know how to use the computer, Semidey had “accessed” it and knew her code and email code. A friend of Werdi’s told her he had received a message from her that said: “You are a fucking asshole, and I hate you for what you did. Never call me again, you bastard.” Werdi testified that Semidey confessed “later on” that he wrote the message.
Werdi testified that she began receiving a lot of prank calls during the January incidents, as well as text messages stating just “666.” She had not been able to track the number, when one day, she decided to answer the phone: “he didn’t say anything. He was mimicking me, and then he hung up on me, and then he called again, and then I answered it, and I said, ‘What do you want from me?’ I said, ‘Leave me alone’....” Werdi stated she spoke with Semidey for about 45 minutes, during which he told her about everything he had done.
Semidey admitted sending a lot of text messages after the restraining order.
On approximately March 14, 2007, Werdi was meeting with her pastor and had just left when she found that her 2004 Honda Accord had a scrape of about 16 inches across the back fender. Werdi obtained a repair estimate for about $695.
Werdi testified that she had cosigned the loan on the 2004 Honda for Semidey; he was to make the payments.
Not long after that incident, Werdi was looking for something in her car trunk and saw a voodoo doll with a needle stuck in its heart, which she knew had not been there when she bought the car.
On March 26, 2007, Werdi’s neighbor knocked on her door and when she answered, told her she had seen a man outside Werdi’s windows, “staring, wearing all black.” Werdi ran outside to try to find him. She also called the police.
In her last phone conversation with Semidey, he admitted that the person in all black had been him.
Werdi obtained a restraining order and moved out of her apartment.
Semidey admitted he decided to go over to Werdi’s apartment on January 29, 2007, had a key, and went in. He went into the shower and put dye in her shampoo. He turned on the gas “to make the place smell bad....” He put dye in her shampoo because he was angry.
The prosecution and defense stipulated that the only restraining order was dated February 22, 2007.
Following a court trial, Semidey was found guilty of first degree residential burglary and felony vandalism (related to the 1997 Honda Civic). He admitted a prior conviction of assault with a deadly weapon, which qualified as a “strike” under the Three Strikes law and as a prior serious felony under section 667, subdivision (a)(1). With respect to the prior prison term allegation (§ 667.5, subd. (b)), Semidey argued that the enhancement did not apply because he had been out of prison for more than five years before committing the instant offenses. The prosecutor agreed.
The trial court sentenced Semidey to the low term of two years on count 2, which was doubled pursuant to the Three Strikes law, for a term of four years. Pursuant to section 667, subdivision (a)(1), the court imposed a consecutive term of five years, for a total of nine years in state prison. On count 3, the trial court imposed the low term of 16 months, plus a one-year enhancement pursuant to section 667.5, subdivision (b), with the sentence to run concurrently with the sentence on count 2.
Semidey appeals.
DISCUSSION
1. Substantial Evidence Supports Semidey’s Burglary Conviction
Semidey contends there was insufficient evidence to support a finding that he had the specific intent to commit a felony assault at the time he entered the apartment. He argues the statements he made to Werdi later the same day that she was “‘lucky,’” that he “’could have done something worse,’” and that he “‘was going to wait for [her] in the shower, but [he] decided not to,’” did not establish beyond a reasonable doubt that he harbored the requisite intent before he entered the apartment, “as opposed to forming the intent after entering and sulking in the sea of melancholy that was produced by the artifacts of a destroyed relationship contained in their former living quarters.” His only intent, he maintains, was “simply to return her keys and to place black hair dye in her shampoo bottle, not to assault or hurt Werdi.” He only turned the gas burners on to make the place “smell bad.” He only turned the burners on quarter-way and left windows open. Also, he had never been violent or “physical” toward Werdi, and there was no reason to believe he intended to assault her upon entering her apartment.
The required intent for a burglary is the specific intent, at the time of entry, to commit any felony or larceny. (§ 459; People v. Carter (2005) 36 Cal.4th 1114, 1144.) “‘Because intent is rarely susceptible to 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 [trier of fact]. [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. Sanghera (2006) 139 Cal.App.4th 1567, 1574.)
“‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if “‘“upon no hypothesis whatever is there sufficient substantial evidence to support”’ the conviction or the enhancement. (People v. Bolin (1998) 18 Cal.4th 297, 331.)” (People v. Garcia (2007) 153 Cal.App.4th 1499, 1508.)
Here, the evidence established that Werdi had withdrawn any grant of access to her apartment that she had previously given Semidey. When asked whether she was surprised that Semidey had a key, Werdi responded: “Yeah, I was, actually. Yes, because he – he said he was – he wanted to return it, and he said he made a copy of it. Yes, I was surprised. So I think I knew that he – I thought he didn’t have the key, I guess.” She had not granted him access to her apartment on January 29, 2007.
The evidence established—through Semidey’s admissions—that he was angry about the termination of his and Werdi’s relationship. He intended to assault her before he arrived at and impermissibly entered Werdi’s apartment because he brought with him black dye that he planned to pour into her shampoo bottle. It was reasonable for the trial court to infer he intended when he entered the dwelling to ruin her shampoo and her hair because he admitted to pouring black dye into the shampoo bottle and only later did he warn her not to use the shampoo so as not to damage her hair. That same evening, Semidey told Werdi he “was going to wait for you in the shower..., but I didn’t.” Combined with his statements to her that she was “lucky,” that he could not control himself, and that he “could have done something worse,” the evidence supported the trial court’s finding beyond a reasonable doubt that at the time Semidey entered the apartment, he intended to “commit an assault with a deadly weapon or force likely to produce great bodily injury.”
Further evidence that Semidey harbored an intent to assault Werdi or commit another felony when he entered her home was his turning on gas burners in her kitchen. He ignited two of the four and left them burning at a low setting, suggesting he did not intend her to notice the smell immediately, just as he planned that she not know he had damaged her shampoo until it was too late. Semidey testified that he turned on the gas “a little bit” and “[m]ostly to make the place smell bad.” He stated he was “trying to make the apartment smell bad and she would think something was wrong in the apartment.” The court could infer Semidey’s intent from the turned-on burners because through this action he showed he had the capacity to enter Werdi’s home, access her stove, and set the stage for potential injury. As the trial court observed, it is not clear whether he opened the windows in her bedroom before or after he turned on the gas. It is similarly unclear whether he did it for her benefit or his own. The evidence is sufficient to support the trial court’s finding that Semidey possessed the requisite intent at the time he broke into Werdi’s apartment. We reject Semidey’s contention to the contrary.
Werdi testified that she smelled the gas when she entered her apartment and went “right away” to the kitchen where she “saw the gas was turned on halfway....” Upon further questioning, Werdi testified the two burners were on “[j]ust a little bit,” “[a] small amount.” She estimated the dial for the burners was “probably on number 4.”
The evidence further established, as Semidey admitted, that he had vandalized Werdi’s car at least four times before he broke into her apartment on January 29, 2007.
2. The Trial Court Properly Exercised Its Discretion Not to Strike Semidey’s Prior “Strike” Conviction
Semidey contends the trial court abused its discretion in denying his motion pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), in which Semidey sought to have stricken his prior 1996 conviction in Case No. LA023651 for violation of section 245, subdivision (a)(1). He argues that “[w]hen [his] background, character and history of mental illness are considered in conjunction with the current offense and his prior record appellant falls outside the spirit of the Three Strikes law.” He argues that the current offense “did not involve actual violence or the actual threat of imminent violence,” that he “did not take anything from her home or destroy anything within her home,” and told Werdi “that he did not want to hurt her, but wanted to kill himself.” We conclude the contention lacks merit and reject it accordingly.
Pursuant to section 1385, subdivision (a), a trial court may strike or vacate an allegation or finding that a defendant was previously convicted of a serious and/or violent felony. (People v. Williams (1998) 17 Cal.4th 148, 158.) In Romero, supra, 13 Cal.4th 497, the California Supreme Court quoted from People v. Orin (1975) 13 Cal.3d 937, explaining that “‘[t]he trial court’s power to dismiss an action under section 1385, while broad, is by no means absolute. Rather, it is limited by the amorphous concept which requires that the dismissal be “in furtherance of justice.”... [¶] From the case law, several general principles emerge. Paramount among them is the rule “that the language of [section 1385], ‘in furtherance of justice,’ requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]” [Citations.] At the very least, the reason for dismissal must be “that which would motivate a reasonable judge.” [Citations.]’” (Romero, supra, 13 Cal.4th at pp. 530–531.) The trial court must take into account the defendant’s background, the nature of his current offense and other individualized considerations. (Id. at p. 531.) Striking a serious felony is an extraordinary exercise of discretion and is reserved for “extraordinary” circumstances. (People v. Philpot (2004) 122 Cal.App.4th 893, 905.) The court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams, supra, 17 Cal.4th at p. 161.) We review the ruling on a Romero motion for abuse of discretion. (See People v. Carmony (2004) 33 Cal.4th 367, 378.)
The trial court acted within its discretion in denying Semidey’s Romero motion. Comparisons between the current offense and Semidey’s 1996 strike offense, as set forth in the prosecution’s opposition to the Romero motion, are noteworthy: (1) In the current case he had a dating relationship with the victim for seven months; in the strike offense, he had a dating relationship with the victim for five months; (2) After the victim terminated the relationship in the instant case, Semidey sent her numerous harassing text messages and made multiple prank telephone calls to her; after the victim terminated the relationship in the earlier case, Semidey made numerous telephone threats to her, including, “‘I’m going to kidnap you and blow us both up in my car; and I’m going to kill your cat’”; (3) In the current case, after committing four separate acts of vandalism aimed at the victim’s car, Semidey entered the victim’s residence, turned on the gas burners, placed dark hair dye in her shampoo in her shower, and waited for her to return, anticipating doing “worse” things to her than he had already done; in the strike offense, Semidey confronted his victim in a parking lot, yelled epithets at her, rammed his vehicle into the back of her vehicle, then broke the car window, punched and choked her, and bit off part of her earlobe. Semidey’s admission to Werdi that he could not control himself and the undisputed fact of his chronic mental illness, plus the similarities in the current and earlier offenses, and the court’s acknowledgement that it “is very concerned about protecting the public with respect to this situation,” all support the trial court’s exercise of its discretion to deny the Romero motion. We therefore reject this contention.
3. The Prior Prison Term Enhancement Should Be Stricken
Semidey contends the trial court erred in imposing a one-year term pursuant to section 667.5, subdivision (b), for the prison term prior on count 3 and that the sentence should be stricken. Semidey argues that, under the California Supreme Court’s decision in People v. Jones (1993) 5 Cal.4th 1142, the most reasonable reading of section 667, subdivision (b) is “when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.” (Id. at p. 1150.) As the trial court had imposed a five-year term for the serious felony prior under section 667, subdivision (a), that was the greatest term and the one-year term should be stricken.
Respondent agrees that the one-year prior prison term enhancement should be stricken, although for a more fundamental reason: at the time of the instant offenses, Semidey had been out of prison for more than five years, and the enhancement did not apply. The record is unequivocal that defense counsel and the prosecutor agreed that, in defense counsel’s words: “[h]e did five years on that case, got out and has not reoffended.” When the trial court asked whether the People concurred, the prosecutor responded: “Yes.” Notwithstanding the trial court’s acknowledgement of the parties’ agreement reflected in the Reporter’s Transcript, the court’s minutes indicate that Semidey “admits the prior convictions [sic] pursuant to Penal Code sections 667.5(b) and 1170.12(a)–(d) and 667(b)–(i).”
“The prosecution has the burden of proving beyond a reasonable doubt each element of the section 667.5, subdivision (b) sentence enhancement, including the fact of no five-year ‘washout’ period. [Citation.]” (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.) Having conceded it cannot carry its burden, respondent asks us to strike the enhancement. Our review of the record convinces us there is no principled basis not to strike the enhancement as requested. The one-year sentence for the enhancement under section 667.5, subdivision (b) is accordingly stricken.
“According to the ‘washout’ rule, if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply. (§ 667.5, subd. (b); see also 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 335, p. 433.) Both prongs of the rule, lack of prison time and no commission of a crime leading to a felony conviction for a five-year period, are needed for the ‘washout’ rule to apply.” (People v. Fielder, supra, 114 Cal.App.4th at p. 1229.)
4. The Trial Court Erred in Failing to Impose Sentence on Count 3 Pursuant to the Three Strikes Law
Respondent contends the sentence was unauthorized and should be modified accordingly. In particular, respondent maintains that Semidey admitted a prior strike conviction (under § 667, subd. (a)(1)), but the trial court failed to sentence him properly under the Three Strikes law on count 3. First, there is no indication that the court doubled the term, pursuant to sections 667, subdivision (e)(1), and 1170.12, subdivision (c)(1). Second, respondent argues that under the Three Strikes law, the sentence on count 3 must run consecutive to, not concurrently with, the sentence on count 2 because the current felony convictions were “‘not committed on the same occasion, and [did] not aris[e] from the same set of operative facts.’” (People v. Deloza (1998) 18 Cal.4th 585, 590–591 (Deloza).) Finally, the principal term/subordinate term methodology of section 1170.1 applies such that the correct sentence on count 3 should have been one-third the mid-term sentence of two years, or eight months, doubled to sixteen months pursuant to the Three Strikes law. Semidey agrees that the sentence appears correct, but that on remand, the trial court should be permitted to exercise its discretion either to reduce the offense in count 3 to a misdemeanor or to strike the prior only with respect to count 3.
We are more persuaded by respondent’s arguments. With respect to doubling the term, sections 667, subdivision (e)(1), and 1170.12, subdivision (c)(1), provide: “If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.” (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) Semidey did admit to the prior felony conviction from 1996. In its imposition of the concurrent “low term of 16 months[,]” the trial court did not appear to be doubling any term but instead seemed to sentence Semidey pursuant to section 18, which sets the sentencing range of 16 months, two years, or three years for offenses, such as vandalism, for which the length of imprisonment is not specified.
Regarding respondent’s argument that consecutive terms on counts 2 and 3 are mandatory, this depends on whether the current convictions: (1) were not committed on the same occasion, and (2) did not arise from the same set of operative facts. In People v. Lawrence (2000) 24 Cal.4th 219 (Lawrence), the California Supreme Court “read the mandatory consecutive-sentencing provision of the Three Strikes law as follows: If there are two or more current felony convictions ‘not committed on the same occasion,’ i.e., not committed within close temporal and sp[at]ial proximity of one another, and ‘not arising from the same set of operative facts,’ i.e., not sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted, then ‘the court shall sentence the defendant consecutively on each count’ pursuant to [section 667,] subdivision (c)(6).” (Id. at p. 233.) The Supreme Court cited Deloza as an example of crimes committed on the same occasion where they were committed “in one location, were brief in duration, and were committed essentially simultaneously against the same group of victims....” (Id. at p. 227.) In Lawrence, the court found the offenses were not committed on the same occasion where the crimes were committed one to three blocks apart against two separate groups of victims. In addition, defendant committed new, separate crimes during his flight, although he was apprehended within 15 to 20 minutes of his initial shoplifting offense. (Id. at p. 228.) Here, the final act of vandalism occurred at least a day before the burglary. There is no evidence in the record to support even the same location, as the vandalism occurred outside the apartment and the burglary, of course, occurred upon Semidey’s entry into the apartment. The victim was the same, but the record makes clear that these crimes occurred on separate occasions.
Earlier acts of vandalism against Werdi’s car, occurring on January 17, 2007, and January 21, 2007, were even more attenuated in time from the burglary on January 29, 2007.
As for the requirement that the current felonies not arise from the same set of operative facts, the Supreme Court found in Lawrence that there were two criminal episodes—the first when defendant shoplifted, fled, and ran a few blocks away, and the other when he trespassed and assaulted a homeowner. Here, Semidey vandalized Werdi’s car one day, then the next day, brought dark dye with him and used a key Werdi did not know he had to gain access to Werdi’s apartment, then, in unknown order, poured the dye into Werdi’s shampoo bottle, waited for some period of time for her to return, turned on two of the four gas burners on her stove, and threw open her bedroom windows. The vandalism was fully complete before Semidey took any of the steps that comprised the residential burglary. There is no dispute that Semidey had the opportunity to reflect on his actions after vandalizing Werdi’s car but before entering Werdi’s apartment the next day. (People v. Jenkins (2001) 86 Cal.App.4th 699, 707 [“each offense was separated by a sufficient amount of time in which defendant could consider the consequences of continuing to commit new criminal acts.”].) We conclude the trial court lacked discretion to sentence concurrently in this case because the offenses at issue were not “committed on the same occasion” and did not arise from the “same set of operative facts” as those terms are used in the Three Strikes law.
Respondent’s last point—that the proper procedure was to sentence according to the principal term/subordinate term methodology of section 1170.1—is well taken. As noted, on count 3, Semidey should have been sentenced to one-third the mid term sentence of two years (8 months), which should then have been doubled under the Three Strikes law for a term of 16 months. We therefore remand the case for resentencing in accordance with the Three Strikes law on count 3.
DISPOSITION
The judgment is modified to strike the one year prior term enhancement (§ 667.5, subd. (b)) on count 3. The case is remanded for resentencing in accordance with the Three Strikes Law on count 3. In all other respects, the judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.