People v. Ingram

• Decision Date: 11 December 1995
• Docket Number: No. F022390,F022390
• Citation: 48 Cal.Rptr.2d 256,40 Cal.App.4th 1397
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 9536, 95 Daily Journal D.A.R. 16,412 The PEOPLE, Plaintiff and Respondent, v. Timothy INGRAM, Defendant and Appellant.

Page 256

48 Cal.Rptr.2d 256

40 Cal.App.4th 1397, 95 Cal. Daily Op. Serv. 9536,

95 Daily Journal D.A.R. 16,412

The PEOPLE, Plaintiff and Respondent, v. Timothy INGRAM, Defendant and Appellant.

No. F022390.

Court of Appeal, Fifth District, California.

Dec. 11, 1995.

Rehearing Denied Jan. 5, 1996.

Review Denied March 14, 1996.

[40 Cal.App.4th 1401] George L. Schraer, under appointment by the Court of Appeal, Berkeley, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Harry Joseph Colombo and Carlos A. Martinez, Sacramento, for Plaintiff and Respondent.

STONE (WM. A.), Associate Justice.

Defendant Timothy Ingram appeals from a judgment of conviction after a jury found him guilty of two counts of residential burglary (PEN.CODE, §§ 459¹, 460) and the trial court found true allegations he had suffered two prior convictions for residential burglary and had served a prior prison term for possession of stolen property. Because of the two prior residential burglary convictions and the current residential burglary convictions, defendant is subject to sentencing pursuant to the "Three Strikes" law, section 667, subdivisions (b) through (i). The court sentenced defendant to state prison for a total term of 27 years to life.

Defendant claims the judgment of conviction must be modified to reflect a second degree burglary conviction for count I because that count involved the burglary of a garage which was attached but not connected by a doorway to the inhabited portion of the house. He claims the "Three Strikes" law does not apply to him because his prior felony convictions occurred before enactment of that law, and even assuming he was subject to sentencing pursuant to section 667, his term was miscalculated because it should not have included 11 years for three enhancements which are based upon prior felony convictions. Therefore, he concludes, the indeterminate term of 27 years to life must be reduced to an indeterminate term of 25 years to life. Defendant also claims his sentence violates article I, section 17 of the California Constitution because it is grossly disproportionate to the offense for which it is imposed.

Respondent contends (1) defendant's sentence is less than mandated by section 667, subdivision (e)(2)(A); (2) consecutive terms of 25 years to life should have been imposed for each count; and (3) the 11-year enhancement term should have been added for a total minimum term of 61 years.

The Current Offenses

The circumstances of the current offenses are undisputed. On the morning of March 28, 1994, between the hours of 9:30 a.m. and 11 a.m., defendant entered Mrs. Migaki's garage without permission and took an automobile battery charger, a surveyor's transit, a hedge trimmer and extension cord. Mrs. Migaki was not home at the time of the burglary. Defendant placed the items in the back of his car and returned to Mrs. Migaki's house. He fled when the burglar alarm sounded as he attempted to pry open the back door to the house.

Soon thereafter, defendant entered the Ewy residence through a bathroom window. He opened a china cabinet drawer looking for something of value, but fled when the burglar alarm sounded. The police stopped his car after receiving a dispatch describing the suspect and vehicle involved in the Ewy burglary. The stolen items were found inside defendant's car.

DISCUSSION

I DEGREE OF BURGLARY

Defendant admits he burglarized the Migaki garage. The issue here concerns the degree of that burglary. Every burglary of an inhabited dwelling house is first degree burglary; all other kinds of burglary are of the second degree. (§ 460.)

The jury was instructed a garage attached to an inhabited dwelling house "that shares a common roof and is an integral part of said dwelling is considered an inhabited dwelling."

The Migaki house, garage and carport share the same roof. In order to enter the garage from the house, one must exit the "rumpus room" door into the carport and use a garage door opener to enter the garage. Garden tools and equipment are stored in the garage.

Defendant contends the burglary of Mrs. Migaki's garage is in the second degree because, although the garage and house share a common roof, there is no connecting door which provides immediate access to the living quarters from the garage. Defendant concedes settled case law does not support his theory, but he argues this court is not bound by the leading cases because the California Supreme Court has not yet decided the issue.

People v. Cook (1982) 135 Cal.App.3d 785, 185 Cal.Rptr. 576, holds "where the garage is an attached and integral part of the house, it is simply one room of several which together compose the dwelling." (Id. at p. 796, 185 Cal.Rptr. 576.) The opinion also notes:

"This is especially true where, as in this case, the garage can be reached through an inside door connecting it to the rest of the residence. The statistically greater probability that an occupant of the house may be in the attached garage or enclosed patio justifies the Legislature's decision to treat burglaries of such locations more severely...." (People v. Cook, supra, 135 Cal.App.3d at p. 796, 185 Cal.Rptr. 576.)

Subsequently, in People v. Moreno (1984) 158 Cal.App.3d 109, 204 Cal.Rptr. 17, the defendant seized upon Cook's reference to an inside connecting door and argued an attached garage without an inside connecting door was not an "inhabited dwelling" for purposes of a first degree burglary designation. The Moreno court rejected the contention:

"Defendant's attempts to distinguish Cook are inapposite. He places excessive emphasis on the fact that, unlike Cook, this case did not involve a door connecting the garage to the interior of the house. The Cook court itself noted, however, that a connecting door was only one method of demonstrating that a garage was an attached and integral part of a dwelling. [Citation.] Moreover, given the fact that the garage was under the same roof, functionally interconnected with, and immediately contiguous to other portions of the house, simple 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...." (People v. Moreno, supra, 158 Cal.App.3d at p. 112, 204 Cal.Rptr. 17.)

In People v. Coutu (1985) 171 Cal.App.3d 192, 217 Cal.Rptr. 191, the defendant burglarized a storeroom that was connected to the main house by a breezeway. The house, breezeway, and storeroom shared a common roof. The breezeway had a door on one side and was open on the other side. Defendant claimed the storeroom was a detached structure which was not a part of the dwelling, so that he was guilty only of second degree burglary. He argued Cook was distinguishable because of the presence of the inside connecting door in that case, and Moreno was distinguishable because the garage in that case was connected to the house by a common wall. The Coutu court found these distinction to be meaningless and concluded "the connecting breezeway structure rendered the storeroom 'functionally interconnected with' and 'an integral part of' the main house." (171 Cal.App.3d at p. 193, 217 Cal.Rptr. 191.)

Defendant contends the reasoning in these cases is faulty because the focus is on physical proximity, i.e., whether the structure and house are physically connected. Instead, according to defendant, the focus should be on whether the structure is immediately accessible through an inside connecting door.

Defendant reasons the designation of residential burglary as a higher degree of burglary is based upon the premise there is a greater potential for a confrontation between burglar and resident, and therefore a greater threat to personal safety. This danger diminishes, according to defendant, if the building is detached or if there is no connecting door. Defendant opines there are fewer trips to an attached garage when there is no connecting door and the occupants of the house are not as threatened by an intruder in an attached garage if there is no immediate access into the living quarters through an inside door.

There is no meaningful distinction between an attached garage with an outside door and an attached garage with an inside door for purposes of deciding the degree of burglary. The close physical proximity of an attached structure is precisely what increases the potential for confrontation and threatens the safety of residents. This potential is no less when access to the garage is from outside rather than from inside the house. The proper focus is whether the attached structure is an integral part of a dwelling; that is, functionally interconnected with and immediately contiguous to other portions of the house. (People v. Moreno, supra, 158 Cal.App.3d at p. 112, 204 Cal.Rptr. 17.) The absence of an inside door does not compel a designation of second degree burglary.

II DETERMINATION OF PRIOR STRIKES

Defendant contends he cannot properly be sentenced under the "Three Strikes" law because at the time his prior felony convictions were entered, the convictions were not found to be "strikes." In other words, the determination of a "strike" is prospective only since a court could not have made such a determination at the time of a prior conviction which predated the legislative enactment of the "Three Strikes" law.

This challenge to the application of the punishment provisions for recidivists under section 667, subdivisions (b) through (i) has been rejected by numerous courts. (People v. Anderson (1995) 35 Cal.App.4th 587, 41 Cal.Rptr.2d 474; People v. Reed (1995) 33 Cal.App.4th 1608, 40 Cal.Rptr.2d 47; People v. Sipe (1995) 36 Cal.App.4th 468, 42 Cal.Rptr.2d 266; People v. Green (1995) 36 Cal.App.4th 280, 42 Cal.Rptr.2d 249.) Most recently, this court rejected the contention in Gonzales v. Superior Court (1995) 37...