People v. Kwok, No. A074646

CourtCalifornia Court of Appeals
Writing for the CourtPHELAN
Citation63 Cal.App.4th 1236,75 Cal.Rptr.2d 40
Parties, 98 Cal. Daily Op. Serv. 3675, 98 Daily Journal D.A.R. 5016 The PEOPLE, Plaintiff and Respondent, v. Elliot Chunpong KWOK, Defendant and Appellant.
Docket NumberNo. A074646
Decision Date13 May 1998

Page 40

75 Cal.Rptr.2d 40
63 Cal.App.4th 1236, 98 Cal. Daily Op. Serv. 3675,
98 Daily Journal D.A.R. 5016
The PEOPLE, Plaintiff and Respondent,
v.
Elliot Chunpong KWOK, Defendant and Appellant.
No. A074646.
Court of Appeal, First District, Division 3, California.
May 13, 1998.
Certified For Partial Publication. *

Page 42

[63 Cal.App.4th 1240] Daniel Byrne, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Catherine A. Rivlin and Michael E. Banister, Deputy Attorneys General, for Plaintiff and Respondent.

PHELAN, Presiding Justice.

Elliot Kwok appeals from a final judgment of conviction following jury trial. He claims he could not be found guilty of residential burglary for an entry into the victim's residence where he removed a lock mechanism, took it to a locksmith who made a key which appellant retained, and then returned the lock to its original position. He argues that no burglary was committed because he did not take the lock with the intent permanently to deprive the victim of it. Rather, his intent at time of entry was to commit a felony assault on the victim on a future date. He further argues that even if his conviction of burglary under these circumstances was proper, sentencing on this charge should have been stayed under Penal Code section 654. 1

We reject his arguments and affirm. 2

FACTUAL AND PROCEDURAL BACKGROUND

1. Procedural History

A grand jury indictment was filed in Contra Costa County accusing appellant of the attempted murder of Desli L. on March 6, 1995, in violation [63 Cal.App.4th 1241] of sections 187 and 664 (count 1). The indictment also included two counts of first degree burglary of her Walnut Creek residence (count 2 and count 3) in violation of sections 459 and 460, subdivision (a). Count 2 accused him of entering her residence on or about March 6, 1995, with intent to commit false imprisonment, assault with intent to commit rape, and intent to commit murder. 3 Count 3 accused appellant of entering Desli's home on February 24, 1995, with intent to commit theft, false imprisonment, assault with intent to commit rape, and intent to commit murder.

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A jury found appellant not guilty of attempted murder, but guilty of the lesser included offense of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury also found him guilty of both first degree burglaries.

Appellant was sentenced to the mitigated term of two years for the assault. The sentence on the March burglary was stayed pursuant to section 654. With respect to the February burglary, the court imposed a consecutive term of one year and four months. The court imposed a restitution fine in the amount of $1000, ordered appellant to have no further contact with Desli, and pay restitution to her in an amount to be determined by the court. He was given a total of 503 days' credit for time served. A timely notice of appeal was filed.

2. Facts

Appellant and Desli were not strangers when appellant entered her residence and assaulted her. She was a dental hygienist and registered nurse and first became acquainted with appellant during the summer of 1992 while a nursing student at California State University, Hayward. He was her pharmacology instructor. He was also employed as a pharmacist at Kaiser-Permanente in Oakland. 4 Desli testified that she usually sat in the front row of appellant's class and often sensed that he was glancing at her. Although the glances made her uncomfortable, she "just passed it off," and did not believe she had any "reason to think much more about it." On the last day of the course, she thanked appellant for teaching a good class. Appellant then gave her his business card and told her to give him a call if she were ever at Kaiser.

Desli had no further contact with appellant until her graduation party in June 1994, when she asked him to dance after she noticed him sitting by [63 Cal.App.4th 1242] himself. They danced together several more times during the evening and began discussing personal matters. Appellant told her he had been separated from his wife for about two years and that she had moved to an apartment in San Francisco with their two children while he continued to live in Oakland. He said the separation had been difficult for him, and Desli, who was divorced herself, expressed sympathy. In fact, appellant had never been separated from his wife and was living with her and their two children in the family's Oakland home.

At the end of the party, appellant asked Desli if she would like to have dinner with him sometime and she said she would, if he were ever in Walnut Creek. A week or two later, appellant called and said he would be attending a meeting at Kaiser in Walnut Creek and asked if she would like to have dinner afterwards. She told him she was "involved elsewhere" but that if he wanted to have dinner, "that would be fine." She testified that she did not want appellant to think she was "completely available" because she was dating someone else at the time, and also because she was not physically attracted to him and was not interested in him "other than as a friend."

Desli and appellant saw each other two to three times a month between June 1994 and March 1995. They went out to dinner and also had dinner at her residence several times; they occasionally went on walks and visited the stables where she kept her horse. He gave her a number of gifts, including flowers, wine, perfume, a necklace, and a picture of her that he had drawn. Appellant testified that he had a romantic and sexual relationship with Desli. She denied this, however, saying that when he indicated a desire to become more intimate with her, she told him she was not interested in having that kind of relationship.

In January 1995, while appellant was dining at Desli's home, he mentioned that he was very handy and that if she required any household repairs he might be able to help her. She asked him to look at the door between her garage and her kitchen because it was hard to lock; she believed the strike plate needed to be adjusted so it would line

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up with the deadbolt. After tinkering with the strike plate, appellant asked if he could remove the whole lock. She told him that was not necessary because, as far as she knew, there was nothing wrong with the lock itself; only the strike plate needed to be adjusted. She told appellant she would have it fixed by a friend who was already doing some repairs around her home.

Desli did not have a key to the door between the garage and the kitchen, so it remained unlocked whenever she left her home through the garage. When she was home, however, she always deadbolted the door from the [63 Cal.App.4th 1243] inside. Appellant knew there was no key for this door because once, when he and Desli were leaving the residence through the garage, he pointed out that she had forgotten to lock the door between the garage and the kitchen. She responded that she did not have a key for that door and that it did not need to be locked because the garage door would be closed.

Desli testified that she never asked appellant to make a key for the kitchen door. Although he admitted she had never asked him to have a key made, he claimed that he volunteered to do so and that she did not object. He also claimed that, in late January, she allowed him to copy the code from her garage door opener so he could program one of his old openers, which would allow him to enter her garage to fix the kitchen door when she was not at home. Desli denied she ever gave appellant permission to enter her home when she was not there, either to repair the kitchen door or for any other purpose. She also denied ever giving him permission to have a garage door opener programmed with her code. She did, however, describe an occasion in early February 1995 when appellant had access to her garage door opener outside her presence and thus an opportunity to copy the code.

On February 24, 1995, appellant came to Desli's house when he knew she would be at work and used the garage door opener programmed with her code to enter. He then removed the lock from the kitchen door and took it to a nearby locksmith to have a key made. The locksmith was able to make the key within an hour by using a code machine and information obtained from lock assembly itself. Appellant then returned to the house and reinstalled the lock. He claimed that the day before he removed the lock he left a message on Desli's answering machine informing her that he was going to have a key made the following day, and that the day after the key was made, he left another message telling her it had been done. Desli denied receiving any such messages. Appellant did not leave the key when he reinstalled the lock. Desli testified that when she came home from work on February 24th, she saw nothing unusual about the door.

Appellant and Desli planned to have dinner together on Monday, March 6, 1995, when he was going to help her with a laptop computer she borrowed from him. On Sunday, March 5, however, she left him a telephone message, asking if they could reschedule their dinner to a date later in the week. She told him she had been asked to work that evening--Sunday--until 11 p.m., and because he would probably be in bed by the time she got home, he could call her Monday morning, presumably to discuss their revised dinner plans.

Since early February, before he had the key made, appellant had been planning what he characterized as a "surprise" for Desli. He testified that he [63 Cal.App.4th 1244] planned this "surprise" because she told him he was "always shy" and that he "needed to be more outgoing[,] outrageous." He thought that after the "surprise," which he said would involve hiding in her house and acting like a "ghost"...

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372 practice notes
  • People v. Kurtenbach, No. D058933.
    • United States
    • California Court of Appeals
    • 12 Abril 2012
    ...by false pretenses did not implicate § 654, because the identity theft occurred prior to the other crimes]; People v. Kwok (1998) 63 Cal.App.4th 1236, 1256, 75 Cal.Rptr.2d 40 [burglary to facilitate commission of crimes nine days later not subject to § 654]; People v. Williams (1988) 201 Ca......
  • People v. Jacobo, D074887
    • United States
    • California Court of Appeals
    • 2 Julio 2019
    ..."[i]f the offenses were committed on different occasions, they may be punished separately." ( People v. Kwok (1998) 63 Cal.App.4th 1236, 1253, 75 Cal.Rptr.2d 40 ( Kwok ).) "This is particularly so where the offenses are temporally separated in such a way as to afford the defe......
  • People v. Felix, No. B147530.
    • United States
    • California Court of Appeals
    • 4 Octubre 2001
    ...created a new risk of harm. (People v. Massie (1967) 66 Cal.2d 899, 908, 59 Cal. Rptr. 733, 428 P.2d 869; People v. Kwok (1998) 63 Cal.App.4th 1236, 1253-1256, 75 Cal.Rptr.2d 40.) "Separate sentencing is permitted for offenses that are divisible in time...." (People v. Kwok, supra......
  • People v. Arndt, No. G021783
    • United States
    • California Court of Appeals
    • 12 Enero 1999
    ...criminal culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211, 23 Cal.Rptr.2d 144, 858 P.2d 611; People v. Kwok (1998) 63 Cal.App.4th 1236, 1252, 75 Cal.Rptr.2d 40.) Each of the crimes committed in this case violates a different legislative ban. Vehicle Code section 23153 is intended......
  • Request a trial to view additional results
372 cases
  • People v. Kurtenbach, No. D058933.
    • United States
    • California Court of Appeals
    • 12 Abril 2012
    ...by false pretenses did not implicate § 654, because the identity theft occurred prior to the other crimes]; People v. Kwok (1998) 63 Cal.App.4th 1236, 1256, 75 Cal.Rptr.2d 40 [burglary to facilitate commission of crimes nine days later not subject to § 654]; People v. Williams (1988) 201 Ca......
  • People v. Jacobo, D074887
    • United States
    • California Court of Appeals
    • 2 Julio 2019
    ..."[i]f the offenses were committed on different occasions, they may be punished separately." ( People v. Kwok (1998) 63 Cal.App.4th 1236, 1253, 75 Cal.Rptr.2d 40 ( Kwok ).) "This is particularly so where the offenses are temporally separated in such a way as to afford the defe......
  • People v. Felix, No. B147530.
    • United States
    • California Court of Appeals
    • 4 Octubre 2001
    ...created a new risk of harm. (People v. Massie (1967) 66 Cal.2d 899, 908, 59 Cal. Rptr. 733, 428 P.2d 869; People v. Kwok (1998) 63 Cal.App.4th 1236, 1253-1256, 75 Cal.Rptr.2d 40.) "Separate sentencing is permitted for offenses that are divisible in time...." (People v. Kwok, supra......
  • People v. Arndt, No. G021783
    • United States
    • California Court of Appeals
    • 12 Enero 1999
    ...criminal culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211, 23 Cal.Rptr.2d 144, 858 P.2d 611; People v. Kwok (1998) 63 Cal.App.4th 1236, 1252, 75 Cal.Rptr.2d 40.) Each of the crimes committed in this case violates a different legislative ban. Vehicle Code section 23153 is intended......
  • Request a trial to view additional results

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