People v. Perkins
| Decision Date | 25 September 2019 |
| Docket Number | F075227 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. RANDALL CORD PERKINS, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant/defendant Randall Cord Perkins broke into a home that was tented for fumigation purposes. The homeowner went by his house to check on it, heard noises inside the tent, and called the police. The officers set up a perimeter; defendant ran out of the tent and refused their repeated orders to stop. He was eventually taken into custody a few houses away. He was wearing gloves, had a knife, and was found in possession of property taken from the house.
Defendant was convicted of residential burglary and three misdemeanor offenses. He was sentenced to the second strike term of 13 years.
On appeal, defendant argues the court should have instructed on trespassing as a lesser offense of burglary, his conviction for misdemeanor possession of burglary tools must be reversed for insufficient evidence, and the court failed to clarify whether it was staying or striking the prior prison term enhancement.
Defendant further argues the court improperly imposed various fines and fees without finding that he had the ability to pay. We requested supplemental briefing on whether the matter should be remanded for the court to consider dismissing the prior serious felony enhancement in light of subsequent legislation.
We remand for sentencing issues on the prior conviction enhancements and otherwise affirm.
Michael Maldonado and his family lived in a home on Shattuck Avenue in Bakersfield. In June 2016, a company put a tent over his residence for three days to fumigate the house. His family stayed at another location during the process. Before the house was tented, Maldonado and his family followed the company's instructions and placed their food, clothing, and other items in plastic bins. They stacked the bins in the living room. They also left open some windows as instructed.
Maldonado went to his house every night to check the property because he was worried someone could break in. On the first and second nights of the process, he walked around the house and did not see any problems; there were no cuts or gaps in the tent.
About 2:00 a.m. on June 28, 2016, Maldonado again went to check his house. It was the third day of the process, and the company was supposed to remove the tent later that day.
As Maldonado walked into the backyard, he heard noises inside the tented house, like
Maldonado walked to the side of the house and saw a long cut in the tent, that was a five-foot high slit that started at the ground. Maldonado testified it was a "clean" cut and "you could tell it was a knife that cut it." The slit was about two feet away from the windows that Maldonado had left open in the house.
Maldonado wanted to go into the tent through the slit, but the fumigation fumes were too strong. He decided to wait outside until someone walked out of the tent. He thought he heard two men talking with each other. He looked through the slit and saw a flashlight moving around. Maldonado was angry because he believed someone was ransacking his house, and he called the police.
Around 3:00 a.m., Bakersfield Police Department Officers Puryear and Wolter responded to Maldonado's home on the dispatch of a burglary in progress. The officers were wearing uniforms and driving marked patrol cars. They contacted Maldonado, who was standing in the backyard of his tented residence.1
Maldonado was visibly upset and said that he thought someone was inside his house.2 Maldonado showed them the opening in the tent and wanted the officers to go inside and investigate.
Officers Puryear and Wolter decided it was not safe to enter because of the fumigation. They called for backup assistance from an officer with a canine partner, so they could attempt a "surrender callout" of whoever was inside. They set up a perimeter while they waited for the other officers. Wolter stayed with Maldonado in the backyard. Puryear went toward the front yard.
Officer Moore arrived to assist and took a position on the side of the house.
Maldonado testified there was a long cut in the tent, and "you could tell it was a knife that cut it." As we will explain below, defendant jumped out of that opening and tried to escape from the officers.
The officers testified about their observations of the opening in the tent. Officer Puryear testified Maldonado pointed it out to him:
Officer Wolter testified Maldonado directed his attention to "an opening in the tenting" on the west side of the residence. The opening "went from approximately the top of the eaves down to the ground," and it was in a straight line. Wolter looked into the tent and saw an open window into the house.
Officer Moore also testified that he saw the opening in the tent.
On redirect examination, the prosecutor asked Officer Moore further questions about the opening in the tent.
Officer Puryear testified that as he stood outside the house and waited for the additional officers, he heard a rustling sound, like someone was inside and opening and closing doors. Officer Wolter heard a chirping alarm and crashing sounds, "like somebody was throwing items about inside the residence." Officer Moore also heard someone inside and a rustling noise like "something moving across the fabric" of the tent.
Officer Puryear then heard what sounded like two materials being rubbed together. The sound seemed to be moving away from him. He saw a bulge in the tent material that moved farther away from him.
A man, later identified as defendant, suddenly jumped out of the opening in the tent that Maldonado had shown the officers. Defendant was wearing a sweatshirt with the hood over his head. Officers Puryear and Wolter identified themselves as policeofficers and yelled at defendant to stop. Defendant ignored their orders and jumped over a wall into a neighbor's yard.
Officer Puryear chased defendant through the neighbor's backyard, around the side, and into the front yard. Puryear followed defendant as he jumped another fence and ran onto the street. Officer Wolter joined the foot pursuit and ran after defendant. Maldonado, the homeowner, also ran after defendant. Officer Moore remained at the house and did not pursue defendant.
The officers continued to order defendant to stop. Defendant got ahead of the officers and ran into the alley behind the homes on Shattuck Avenue. Defendant jumped a chain link fence and got into a residential backyard.
Officer Puryear saw defendant in the backyard. Puryear activated his Taser in dart mode and discharged it at defendant. Defendant was hit in the shoulder, but he ripped the cord from the dart and kept moving.
Officer Puryear entered the backyard,...
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