People v. Brown
| Decision Date | 24 August 2020 |
| Docket Number | B295442 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. BERNARD BROWN, JR., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 871115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA109769)
APPEAL from judgment of the Superior Court of Los Angeles County. James D. Otto, Judge. Modified and affirmed with directions.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael C. Keller and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
____________________ Bernard Brown, Jr. appeals the judgment entered following a jury trial in which he was convicted of four counts of first degree residential burglary (counts 1, 2, 4, and 5; Pen. Code,1 § 459) and one count of driving or taking a vehicle without consent (count 3; Veh. Code, § 10851, subd. (a)). As to count 2, the jury found true the allegation that another person other than an accomplice was present in the residence during the burglary. (Pen. Code, § 667.5, subd. (c).) Appellant admitted a prior conviction for driving or taking a vehicle without consent pursuant to section 666.5, and two prior convictions that qualified as strikes and as prior serious felony convictions (§ 667, subd. (a)(1)). The trial court imposed an aggregate sentence of 64 years to life.2
Appellant contends and respondent agrees that appellant's convictions on counts 4 and 5 for first degree residential burglary should be reduced to second degree burglary and the matter remanded to the trial court for resentencing. We agree. We reject appellant's further contention that section 654 prohibits separate punishments for counts 1, 4 and 5 as well as his argument that counsel was ineffective for failing to make this meritless argument. Finally, we find substantial evidence supports appellant's conviction on count 5.
In June 2018, John Atkinson and Valerie Adams lived in separate units of an apartment complex in Long Beach. The complex had a gated parking structure on the first floor; the residents' apartments were two floors above the garage. Cars could enter the garage through an automated gate with a remote control. Pedestrians could access the garage through the same gate or by entering the apartment complex and then the garage through locked doors requiring a key.
On the evening of June 24, 2018, Adams drove her Honda Civic into the parking garage, parked, and locked the car. Between 9:00 and 10:00 that night, Adams's daughter, Tammy Brawner, drove her Mercedes Benz into the garage and parked it alongside the Honda. She locked the car and went to her mother's apartment where she spent the night.
Atkinson pulled his Chevy Camaro into the parking garage around 1:15 a.m. on June 25, 2018. He parked in his assigned space next to Adams's Honda and the Mercedes, locked his car, and went to his apartment.
When Atkinson went to his car around 7:15 a.m. on June 25, 2018, he discovered his car's front passenger side window had been shattered during the night. A pair of glasses, a Louis Vuitton wallet, a black wallet that Atkinson used for work, an iPod, a bag containing sports gear, and a set of keys weremissing from the car. The black wallet contained Atkinson's work ID, a medical card, debit card, and his driver's license.
Atkinson called the police and reported the break-in and theft. Having noticed the front driver's side window of the Mercedes next to his car had been shattered, he went upstairs to inform Adams and Brawner of the damage to the cars.
Brawner found that the front driver's side window of the Mercedes had been completely smashed out, and the glove compartment and center console were open. Two wallets containing Brawner's identification, three debit cards and cash were missing. An Apple laptop computer and a few other items had been taken as well. The front driver's side window of the Honda was also smashed out and interior compartments stood open. Adams reported that a pair of eyeglasses, an eyeglass case, an iPad, and a pair of Nike shoes were missing.
Atkinson contacted his credit union around 9:00 a.m. and learned that his debit card had been used at a McDonald's that morning. Records from a Long Beach Target store showed that a purchase was attempted using Atkinson's and Brawner's debit or credit cards at a self-checkout machine on the morning of June 25, 2018. A surveillance video from the Target showed appellant and another person using the self-checkout machines and leaving the store.
Appellant was arrested a few weeks later, on July 18, 2018. At the time of his arrest he was carrying a men's Louis Vuitton wallet, which Atkinson identified as the one that had been stolen from his car. Appellant was found in possession of a device for breaking car windows when he was arrested. Appellant resembled the person making purchases with the stolen credit or debit cards on June 25, 2018, in the Target surveillance video,and his shoes with distinctive shoelaces matched those of the person in the video. In addition, appellant's tattoos on his arm and an angel wing tattoo on his neck were consistent with the tattoos visible on the subject of the surveillance video.
Appellant asserts that the evidence was insufficient to support first degree burglary convictions on counts 1, 4 and 5. Instead, he maintains that the evidence supported only one count of first degree burglary because he only entered the apartment complex parking garage one time and there was no evidence anyone was inside the vehicles when they were burglarized. The standard of review for appellant's claim is well settled: (People v. Zaragoza (2016) 1 Cal.5th 21, 44.)
Appellant contends and respondent concedes that the single entry into the garage of the inhabited apartment buildingsupports only one conviction for first degree residential burglary, and appellant's convictions on counts 4 and 5 must be reduced to second degree burglary. We agree.
"Burglary is committed when a person 'enters any . . . building' with the intent of committing 'larceny or any felony.' " (People v. Yarbrough (2012) 54 Cal.4th 889, 890; People v. Montoya (1994) 7 Cal.4th 1027, 1041 (Montoya) []; § 459.) There are two degrees of burglary: A burglary of an inhabited dwelling—residential burglary—is of the first degree; "[a]ll other kinds of burglary are of the second degree." (§ 460, subds. (a) & (b); Yarbrough, at p. 892.)
Courts give the term "inhabited dwelling" a broad, inclusive definition, focusing on whether the dwelling is used as a residence. (People v. Cruz (1996) 13 Cal.4th 764, 776; People v. Thorn (2009) 176 Cal.App.4th 255, 261 (Thorn).) " (Cruz, at p. 776; Thorn, at p. 261.)
Numerous courts have found an attached garage to be functionally connected to the building to which it is attached, and thus part of the inhabited dwelling for purposes of first degree burglary. (See, e.g., People v. Debouver (2016) 1 Cal.App.5th 972, 981-982 []; People v. Harris (2014) 224 Cal.App.4th 86, 89-90 []; Thorn, supra, 176 Cal.App.4th at pp. 262-263 []; In re Edwardo V. (1999) 70 Cal.App.4th 591, 594 []; People v. Fox (1997) 58 Cal.App.4th 1041, 1047 []; People v. Ingram (1995) 40 Cal.App.4th 1397, 1402, 1404 [], overruled on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8.)
Here, appellant was charged and convicted of three counts of first degree burglary—one count for each car he broke into in the same residential parking garage. But as appellant correctly maintains, the evidence established only one count of first degree burglary for a single entry into the...
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