People v. Bedolla
| Decision Date | 22 October 2018 |
| Docket Number | H044681 |
| Citation | 28 Cal.App.5th 535,239 Cal.Rptr.3d 341 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Francisco BEDOLLA, Defendant and Appellant. |
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Melissa A. Meth, Deputy Attorney General, for Plaintiff/Respondent.
Under appointment by the Court of Appeal, Nancy Susan Brandt, for Defendant/Appellant.
A jury convicted Francisco Bedolla of attempted first degree burglary and found true the allegation that someone other than an accomplice was in the residence during the commission of the attempted burglary. Bedolla testified in his own defense. Bedolla argues on appeal—and the People concede—that the allegation is not applicable to the crime of attempted burglary and must be stricken. He also contends that the trial court gave conflicting jury instructions on the defense of voluntary intoxication and granted the prosecutor’s request to impeach his credibility with inadmissible evidence of a prior offense that did not involve moral turpitude. As explained herein, we shall affirm the judgment, modified to strike the true finding on the allegation.
The Santa Clara County District Attorney charged Bedolla by information filed on January 11, 2017, with attempted first degree burglary, a felony, committed on October 31, 2014 ( Pen. Code, §§ 664, 459, 460, subd. (a) ;1 count 1). The information also alleged a special circumstance within the meaning of section 667.5, subdivision (c)(21), that a person not an accomplice (A.D.)2 was present in the residence during the commission of the attempted burglary.
A.D., who was then 14 years old, rode his bicycle home from school on October 31, 2014, around 12:30 p.m. He entered the house, locked the door, and went upstairs to his room. He and his 11-year-old brother were the only people at home. About 10 minutes later, A.D. heard knocking at the front door. He ignored it but it became louder so he went downstairs and looked through the front door peephole. He saw a man, later identified as Bedolla, wearing a white t-shirt. A.D. did not know the man, so he returned upstairs and looked out the window for a better view. Another man, wearing a black hoodie, was pacing between the front walkway and the sidewalk. He appeared to be acting as a lookout. Meanwhile, the banging on the front door became louder, like kicking. A.D. heard more than 30 kicks and believed someone was trying to break in. He called his father who told him to call 911.
A City of San Jose police officer arrived at the scene within 30 to 45 seconds of the emergency call. Two men were standing in the driveway of A.D.’s house. They took off running. The officer intercepted them and detained them at gunpoint. One suspect, later identified as Joseph Mariscal, was wearing a black jacket with a gray hoodie. The other, identified as Bedolla, was wearing a white t-shirt. Officers brought Bedolla and Mariscal to the sidewalk in front of A.D.’s house for an in-field identification. A.D. identified them from the upstairs window as the individuals he had seen outside his house.
The front door of A.D.’s house was closed when the officers arrived and was visibly damaged. There was white debris on the door mat and splinters from the door, which was "almost partially open." The damage was consistent with other burglaries in which the front door had been kicked in. Shoe prints on the door matched the shoes worn by Mariscal.
Bedolla testified that he had taken the day off from work to celebrate Halloween with his cousin in San Jose. A coworker drove him in the morning to his cousin’s house. The group was drinking and pressured him into joining them. He had beer and about 10 shots, or half a bottle, of cognac. He joined his cousin’s neighbor, Mariscal, to meet one of Mariscal’s cousins. They were dropped off near the area where they were later arrested. While they waited for the cousin to pick them up, Bedolla knocked on the door of a neighbor’s house to trick-or-treat. The neighbor gave him candy.
Bedolla was drunk. He thought he could get more candy. He had seen A.D. ride by on his bicycle and go inside the house. He began knocking on A.D.’s door. He was confused why no one answered so he knocked a few more times. Mariscal was standing on the sidewalk waiting for the cousin to show up. Bedolla was about to give up and walk off when Mariscal came to the door and started kicking it. Mariscal kicked the door about 10 times using the bottom of his shoe. Bedolla eventually tried to pull him away and told him to stop. They were walking away when Bedolla heard a siren. A police vehicle pulled up and the officer confronted them with his gun drawn. Bedolla was compliant and did not run. He did not intend to burglarize the house and was not casing the neighborhood.
Bedolla admitted that in May 2014 he gave a false name to a police officer, and in October 2013, when he was 16 or 17, he committed a felony nontheft-related crime of moral turpitude. He was not so intoxicated on the day of the incident that he did not know what he was doing.
Bedolla’s stepfather, Jose Ojeda, testified that he had known Bedolla for six years and had worked with him for the last two years. He believed that Bedolla was honest.
The officer who searched Bedolla did not observe any objective signs of intoxication.
The trial court instructed the jury on the charged offense of "attempt[ing] to enter an inhabited dwelling house ... with the intent to commit theft" under two possible theories of liability: as an aider and abettor and/or as a direct perpetrator. The court instructed the jury on the defense of voluntary intoxication under each of these theories. Neither party objected. We review the pertinent instructions in detail in the Discussion section, post .
The jury returned a guilty verdict on count 1 and a true finding on the allegation under section 667.5, subdivision (c)(21). The trial court sentenced Bedolla on April 28, 2017, to one year in county jail. Based on presentence credits (429 days of credit, consisting of 215 actual plus 214 conduct), the court deemed the jail term served. The court placed Bedolla on three years of formal probation and imposed fines and fees.
Bedolla timely appealed.
Bedolla argues that his conviction for attempted first degree burglary should be reversed because the trial court (1) prejudicially misinstructed the jury on the voluntary intoxication defense and (2) admitted improper impeachment evidence. He also challenges the section 667.5, subdivision (c)(21) allegation, which the People agree must be stricken.
The information charged Bedolla with attempted first degree burglary and alleged that a person not an accomplice was present in the residence during the commission of the attempted burglary, within the meaning of section 667.5, subdivision (c)(21). The jury found the allegation to be true. Bedolla argues the section 667.5, subdivision (c)(21) allegation must be stricken because the evidence at trial showed that neither Bedolla nor Mariscal gained entry to the house. The People agree that section 667.5, subdivision (c)(21) does not apply to attempt crimes and must be stricken.
Section 667.5, subdivision (a) authorizes a sentence enhancement where a prior felony conviction and the new offense are "violent felonies specified in subdivision (c)." Subdivision (c)(21) of that section specifies as one such violent felony "[a]ny burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." (§ 667.5, subd. (c)(21).) Section 460, subdivision (a) defines "[e]very burglary of an inhabited dwelling house" as burglary of the first degree.
The parties are correct that the allegation was improperly sustained. The plain meaning of section 667.5, subdivision (c)(21) is that a "violent felony" is any first degree burglary where another person, not an accomplice, was present during the burglary’s commission. The statute does not refer to attempted burglary, and except as specified, "[s]ection 667.5, subdivision (a), does not apply to attempts to commit the crimes referred to as violent felonies." ( People v . Ibarra (1982) 134 Cal.App.3d 413, 425, 184 Cal.Rptr. 639.)
As Bedolla points out, the evidence at trial supported only attempted first degree burglary, because the kicking of the front door while A.D. was home damaged the door but did not result in entry into the home. (Cf. § 459 []; Magness v . Superior Court (2012) 54 Cal.4th 270, 279, 142 Cal.Rptr.3d 268, 278 P.3d 259 [].) Because there was no entry into the house and Bedolla was convicted of attempted burglary, the true finding on the special circumstance allegation must be stricken.
Evidence of voluntary intoxication is generally admissible on the issue of whether a defendant formed the specific intent required for the crime charged. (§ 29.4, subd. (b); People v. Mendoza (1998) 18 Cal.4th 1114, 1125, 77 Cal.Rptr.2d 428, 959 P.2d 735 ( Mendoza ).) In this case, the prosecution advanced two theories by which the jury could convict Bedolla of attempted burglary—either as an aider and abettor of Mariscal or as a...
To continue reading
Request your trial
-
People v. Tousant
...See footnote *, ante .12 Various cases explain the legislative purpose behind these firearm statutes. (See, e.g., People v. Bedolla (2018) 28 Cal.App.5th 535, 552 [purpose of § 25850, subd. (a) to address the hazard presented by carrying loaded firearms in public]; People v. Ratcliff (1990)......
-
People v. Delgado
...error forfeits the issue on appeal unless the error affects defendant's substantial rights.’ "]; People v. Bedolla (2018) 28 Cal.App.5th 535, 544, 239 Cal.Rptr.3d 341 [same].) And "[w]e can only determine if [a] defendant[’s] substantial rights were affected by deciding whether the instruct......
-
People v. Moreno
...object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights.'"]; People v. Bedolla (2018) 28 Cal.App.5th 535, 544 [same].) Of course, "[w]e can only determine if [a] defendant['s] substantial rights were affected by deciding whether the......
-
People v. Davis
...instructions is determined through a review of " 'the entire charge to the court,' " not from parts of an instruction. (People v. Bedolla (2018) 28 Cal.App.5th 535, 545.) It is assumed jurors are intelligent persons, capable of understanding and correlating all jury instructions which are g......
-
Character and habit
...2d 723. A prior act involving moral turpitude is at least minimally relevant to the witness’ credibility. People v. Bedolla (2018) 28 Cal. App. 5th 535, 555, 239 Cal. Rptr. 3d 341. Hearsay evidence is inadmissible to prove past misconduct that did not result in a felony conviction, and evid......
-
Submission to jury and deliberations
...asks whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. People v. Bedolla (2018) 28 Cal. App. 5th 535, 545, 239 Cal. Rptr. 3d 341. The reviewing court must consider whether there is a reasonable likelihood that the trial court’s instructions......
-
Table of cases
...362, §§13:30, 14:10 Bedolla v. Logan & Frazer (1975) 52 Cal. App. 3d 118, 125 Cal. Rptr. 59, §§4:70, 4:170 Bedolla, People v. (2018) 28 Cal. App. 5th 535, 239 Cal. Rptr. 3d 341, §§11:10, 22:50 Beeler, People v. (1995) 9 Cal. 4th 953, 39 Cal. Rptr. 2d 607, §§9:130, 9:150, 9:160 Behr v. Redmo......