People v. Allen

• Decision Date: 30 January 2001
• Docket Number: No. B136331.,B136331.
• Citation: 86 Cal.App.4th 909,103 Cal.Rptr.2d 626
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kevin ALLEN, Defendant and Appellant.

103 Cal.Rptr.2d 626

86 Cal.App.4th 909

The PEOPLE, Plaintiff and Respondent, v. Kevin ALLEN, Defendant and Appellant.

No. B136331.

Court of Appeal, Second District, Division 3.

January 30, 2001.

Certified for Partial Publication.^*

Rehearing Denied February 21, 2001.

Review Denied May 2, 2001.^**

Judith Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, and Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.

ALDRICH, J.

I. INTRODUCTION

Appellant and defendant Kevin Allen appeals from the judgment entered following a jury trial that resulted in his conviction of second degree burglary of a vehicle, auto burglary (Pen.Code, § 459), and breaking or removing vehicle parts, auto tampering (Veh.Code, § 10852). Appellant was sentenced to a total prison term of six years.

In the published portion of this opinion (parts I, II, III.A, and IV), we address what appears to be a case of first impression. We are called upon to decide whether a person has committed auto burglary (Pen.Code, § 459) when that person has gained access to a vehicle's trunk by opening an unlocked passenger door and thereafter lifting a trunk latch. We conclude such a person has not entered a "vehicle ... when the doors are locked." Thus, in this case, appellant was improperly convicted of auto burglary and the trial court erred in denying his motion for acquittal. (Pen.Code, § 1118.1.)

In the unpublished portion of this opinion (part III.B), we find unpersuasive appellant's contention that the trial court erred in denying his Wheeler¹ motion.

We reverse the judgment on count one, auto burglary (Pen.Code, § 459), and remand for resentencing. In all other respects, the judgment is affirmed.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts.

On June 11, 1999, between 6:30 and 7:30 p.m., James Patrick Costello parked his four-door Toyota near Selma and Ivar Avenues in Hollywood. Costello had been in that location hundreds of times. When Costello left the car, the windows were rolled up, the doors were closed, and the trunk was shut. The windows were not broken. The door locks were broken and thus, could not be locked. The trunk compartment was not accessible from the outside. The trunk lock was broken and could not be opened with a key. To access the interior of the trunk, one had to pull a latch located inside the passenger compartment on the driver's side, underneath the seat. When the latch was pulled, the trunk lid would "pop" open. The latch did not require the use of a key. To locate the latch, the driver's door had to be open. Costello did not keep anything of value in the passenger compartment of his Toyota. His golf clubs and golf shoes were in the trunk.

Around 10:00 p.m. that evening, Jose Mauricio Torres saw appellant walking back and forth near Costello's Toyota. Appellant was looking in different directions. Torres went to the nightclub where he was working and summoned the manager.

Torres and the manager walked out of the club and onto the street. At first, they did not see appellant. Moments later, the Toyota's trunk lid opened and appellant exited the car on the passenger's side. Appellant went to the trunk, stooped down, and appeared to take something from the trunk. Appellant closed the trunk lid and walked away. Appellant had opened the trunk by pulling the latch located under the driver's seat.

Police summoned to the scene found appellant in the area. Appellant did not have any burglary tools.

Costello returned to his car around midnight. Nothing was missing from inside the vehicle or from inside the trunk.

B. Procedure.

Appellant was charged in count one with auto burglary (Pen.Code, § 459) and in count two with auto tampering. (Veh. Code, § 10852.) The information also alleged that appellant had served five prior prison terms. (Pen.Code, § 667.5, subd. (b).) Trial was by jury. At the end of the prosecution case, appellant made a motion of acquittal pursuant to Penal Code section 1118.1 as to the charge of auto burglary. The motion was denied. Appellant was convicted as charged. In a bifurcated proceeding, appellant admitted he had served three prior prison terms. (Pen.Code, § 667.5, subd. (b).)

Appellant was sentenced to a total prison term of six years, consisting of three years for the auto burglary, plus three years for the prior convictions. The six months sentence as to auto tampering was stayed.

III. DISCUSSION

A. Appellant's actions did not constitute auto burglary. The trial court erred in denying appellant's motion of acquittal.

Appellant contends the trial court erred in denying his motion of acquittal (Pen.Code, § 1118.1), which was made only as to the charge of auto burglary. (Pen. Code, § 459.)² As appellant must admit, the evidence showed that he entered Costello's car through unlocked doors, he pulled the trunk release latch, thereby opening the trunk lid, and then he reached into the trunk. He argues such actions cannot, as a matter of law, constitute the crime of auto burglary. (Pen.Code, § 459.) This argument is persuasive.

Under Penal Code section 1118.1 the court "shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal." "[T]he `test to be applied by the trial court under the section is ... the same test applied by an appellate court in reviewing a conviction: whether from the evidence, including reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged [citations].' [Citations.]" (People v. Lines (1975) 13 Cal.3d 500, 505, 119 Cal.Rptr. 225, 531 P.2d 793; People v. Cuevas (1995) 12 Cal.4th 252, 261, 48 Cal. Rptr.2d 135, 906 P.2d 1290.) Substantial evidence 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.]"

(People v. Stanley (1995) 10 Cal.4th 764, 792, 42 Cal.Rptr.2d 543, 897 P.2d 481.)

"Generally, this state has defined burglary as entry with the requisite intent, as the common law element of breaking has never been an essential element of the offense [citation]. However, where the place entered is a vehicle, the Legislature added another element to the corpus delicti, namely, that the doors of the vehicle `are locked.'" (People v. Woods (1980) 112 Cal.App.3d 226, 229, 169 Cal.Rptr. 179.) Auto burglary can be committed only by entering a locked vehicle without the owner's consent. (People v. Mooney (1983) 145 Cal.App.3d 502, 505, 193 Cal.Rptr. 381.) Penal Code section 459 defines burglary as "[e]very person who enters any house, room, apartment, ... vehicle as defined by the Vehicle Code, when the doors are locked, ... with intent to commit grand or petit larceny or any felony...." (Italics added.)³

In construing Penal Code section 459, as with other penal statutes, "`[i]t is the policy of this state to construe [it] as favorably to the defendant as its language and the circumstances of its application may permit; ... the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute.' [Citations.]" (People v. Woods, supra, 112 Cal.App.3d at p. 231, 169 Cal.Rptr. 179; People v. Franklin (1999) 20 Cal.4th 249, 253, 84 Cal.Rptr.2d 241, 975 P.2d 30; People v. Valencia (2000) 82 Cal.App.4th 139, 145, 98 Cal.Rptr.2d 37.)

We begin the analysis by acknowledging that the trunk is considered a separate part of the vehicle and illegal entries therein will result in an auto burglary. "The trunks or luggage compartments of automobiles are fitted with locks for the very reason that they furnish a convenient place for the carrying of things of value." (People v. Toomes (1957) 148 Cal.App.2d 465, 466, 306 P.2d 953.) The purpose of Penal Code section 459 can only be served by denouncing as a felony entry into a locked trunk compartment, in addition to those entries accomplished by breaking or opening locks of a car's side doors. (Ibid. [burglary when defendant uses tire iron rim and screwdriver to open trunk]; People v. Blalock (1971) 20 Cal.App.3d 1078, 98 Cal.Rptr. 231 [burglary of trunk].)

Further, a burglary occurs when there is an illegal entry into a locked trunk, even if the side doors are not locked. (People v. Blalock, supra, 20 Cal. App.3d at p. 1083, 98 Cal.Rptr. 231.) The existence of a burglary does not "turn on the locked or unlocked state of an area not involved in the entry. If the entry is made by unlocking the trunk door, it is immaterial that some other door, leading to some other space, was unlocked." (Ibid.; cf., People v. Massie (1966) 241 Cal.App.2d 812, 51 Cal.Rptr. 18 [doors of semi-trailer secured with metal seals were "locked" even though the doors of the truck-tractor to which the semi-trailer had been attached were not locked].)

Thus, this case turns on whether Costello's vehicle and its trunk were "locked" within the meaning of Penal Code section 459.

A clear example of an illegal entry into a "locked" vehicle is when a trunk lock, the securing device, is manipulated by a tool, such as a screwdriver. (E.g., People v. Toomes, supra, 148 Cal.App.2d 465, 306 P.2d 953 [tire rim and screwdriver used to open trunk lock]; People v. Blalock, supra, 20 Cal.App.3d 1078, 98 Cal.Rptr. 231.) Another such example is when the doors of semi-trailers are secured by metal clips and strips of pliable metal going around the door handles and through the clips, and the seals are broken to gain access to the trailers' doors. (People v. Massie, supra, 241 Cal.App.2d 812, 51 Cal.Rptr. 18.) In...