People v. Sherow

• Court: California Court of Appeals
• Writing for the Court: IRION
• Citation: People v. Sherow, 196 Cal.App.4th 1296, 128 Cal.Rptr.3d 255, 11 Cal. Daily Op. Serv. 8041, 2011 Daily Journal D.A.R. 9637 (Cal. App. 2011)
• Decision Date: 28 June 2011
• Docket Number: No. D056988.,D056988.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Timothy Wayne SHEROW et al., Defendants and Appellants.

196 Cal.App.4th 1296

128 Cal.Rptr.3d 255

11 Cal. Daily Op. Serv. 8041

2011 Daily Journal D.A.R. 9637

The PEOPLE, Plaintiff and Respondent,

v.Timothy Wayne SHEROW et al., Defendants and Appellants.

No. D056988.

Court of Appeal, Fourth District, Division 1, California.

June 28, 2011.

Certified for Partial Publication.^*

William D. Farber, San Rafael, under appointment by the Court of Appeal, for Defendant and Appellant Timothy Wayne Sherow.

Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant Timothy Wayne Sherow, Jr.

Edmund G. Brown Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

IRION, J.

Timothy Wayne Sherow (Sherow, Sr.) and Timothy Wayne Sherow, Jr., (Sherow, Jr.) were charged in the same information.

The charges against Sherow, Sr., were tried to a jury, which found him guilty on nine counts of burglary (Pen.Code, § 459).¹ Sherow, Sr., admitted a prior strike and eight prior prison terms. (§§ 667.5, subd. (b), 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) The trial court sentenced Sherow, Sr., to 19 years four months in prison.

Sherow, Jr., pled guilty to 27 counts of burglary (§ 459) and 27 counts of receiving stolen property (§ 496, subd. (a)). The trial court sentenced Sherow, Jr., to six years four months in prison.

Sherow, Sr., contends that (1) the trial court erred in admitting surveillance videos showing him stealing DVD's from Walmart and Sam's Club stores; (2) insufficient evidence supports certain of the burglary convictions; and (3) the trial court erred by instructing the jury, with respect to counts 7 through 10, that Sherow, Sr., had the burden to prove a consent defense to burglary by a preponderance of the evidence. We conclude that the third argument has merit. The trial court committed prejudicial instructional error regarding the consent defense to burglary. Accordingly, we reverse the judgment against Sherow, Sr., on counts 7 through 10.

Sherow, Jr., argues that (1) the imposition of a criminal conviction assessment under Government Code section 70373 was invalid on ex post facto grounds, and (2) his presentence conduct credits under Penal Code section 4019 should be adjusted to reflect the retroactive application of an amendment to section 4019 that became effective after he was sentenced. We reject Sherow, Jr.'s first argument but conclude that the second argument has merit, and therefore modify the judgment to award an additional 64 days of conduct credits to Sherow, Jr., for a total of 128 days of conduct credits.

IFACTUAL AND PROCEDURAL BACKGROUND

In approximately 2003, Sherow, Sr., began engaging in transactions at the AAA Jewelry & Loan pawnshop in Riverside (the pawnshop), which was managed by Robert Stephen Mann. Sherow, Sr.—always accompanied by a second person—would bring large quantities of DVD's to the pawnshop to sell. The DVD's were new and in the original shrink-wrap packaging.

In 2007, Detective Charles Payne of the Riverside Police Department became suspicious upon reviewing the pawnshop's records, which showed large transactions involving new DVD's. Detective Payne met with Mann, who showed him a storeroom containing 1,230 new boxed sets of DVD's, most of which Mann purchased from Sherow, Sr., and his associates. Mann had received over $100,000 by reselling the new DVD's brought in by Sherow, Sr., and his associates.

On July 31, 2007, Detective Payne and Police Officer Daniel Cisneros conducted visual surveillance of Sherow, Sr. He was first observed with his sister selling 377 DVD's at the pawnshop for $754. Sherow, Sr., then drove to a Ross store in Riverside, where Officer Cisneros observed him taking clothes off the rack, rolling them up, placing them in his pants and then leaving the store without purchasing the clothes. Officer Cisneros next followed Sherow, Sr., to an AJWright store in Riverside where he witnessed Sherow, Sr., steal clothes in the same manner. While Sherow, Sr., was inside a third store, Officer Cisneros placed a tracking device on Sherow, Sr.'s car.

The next day, August 1, 2007, Detective Payne used the tracking device to determine the movement of Sherow, Sr.'s car. Detective Payne determined that the car traveled to a Walmart store in Westminster at 8:46 a.m., a Walmart store in Corona at 9:39 a.m. and a Sam's Club store in Corona at 10:10 a.m. Later that day, Detective Payne observed Sherow, Sr., meet his son Dominique in the parking lot of the pawnshop and hand over a large box of DVD's. Dominique went into the pawnshop with the DVD's and sold 259 DVD's for $518. Dominique emerged a short time later and pulled money out of his pocket, which he divided with Sherow, Sr.

Detective Payne obtained surveillance videos from the Walmart store in Westminster, the Walmart store in Corona and the Sam's Club store in Corona for the time period that the tracking device indicated Sherow, Sr., was in those stores on August 1, 2007. Detective Payne reviewed the videos and observed Sherow, Sr., at each of the stores taking DVD's off the shelves and putting them down his pants.

On August 18, 2007, Detective Payne conducted surveillance of Sherow, Sr., at the pawnshop. He saw Sherow, Sr., enter the pawnshop with a woman he introduced to Mann as his girlfriend. They sold 423 DVD's to Mann for $846.

Police arrested Sherow, Sr., at the pawnshop on September 19, 2007. On that day, Sherow, Sr., entered the pawnshop with 67 boxed sets of DVD's and a homeless man, whom Sherow, Sr., had asked to complete the sales transaction for him using the man's identification.

Sherow, Sr., was charged with several counts of burglary (§ 459). Counts 1 and 2 arose from stealing clothes in the Ross and AJWright stores on July 31, 2007. Counts 4, 5 and 6 arose from stealing the DVD's at the Walmart and Sam's Club stores on August 1, 2007.² Counts 7 through 10 alleged that Sherow, Sr., committed burglary by entering the pawnshop with the intent to commit theft or a felony on July 31, 2007, August 1, 2007, August 18, 2007, and September 10, 2007.

The same information charged Sherow, Jr., with 27 counts of burglary (§ 459) and [128 Cal.Rptr.3d 259]27 counts of receiving stolen property (§ 496, subd. (a)).

The jury convicted Sherow, Sr., on counts 1, 2 and 4 through 10. Sherow admitted prior prison terms and a prior strike, and the trial court sentenced Sherow, Sr., to prison for 19 years four months.

Sherow, Jr., pled guilty and the trial court sentenced him to prison for six years four months.

Both Sherow, Jr., and Sherow, Sr., appeal.

IIDISCUSSION

A.–B.^**

C. The Trial Court Erred in Instructing the Jury Regarding the Consent Defense to Burglary

We next consider Sherow, Sr.'s argument that the trial court improperly instructed the jury regarding consent as a defense to burglary.

The offense of burglary is committed when a person enters a building with the intent to commit a felony. (§ 459.) However, a defense to a charge of burglary is available “when the owner actively invites the accused to enter, knowing the illegal, felonious intention in the mind of the invitee.... [T]he owner-possessor must know the felonious intention of the invitee. There must be evidence ‘of informed consent to enter coupled with the “visitor's” knowledge the occupant is aware of the felonious purpose and does not challenge it.’ ” ( People v. Felix (1994) 23 Cal.App.4th 1385, 1397–1398, 28 Cal.Rptr.2d 860( Felix ), citations omitted.)

Relying on this principle, defense counsel argued to the jury that Sherow, Sr., was not guilty of counts 7 through 10, which charged him with burglarizing the pawnshop by entering it with the intent to sell stolen property. According to defense counsel's closing argument, the evidence established that Mann knew that Sherow, Sr., was selling stolen DVD's and consented to him coming into the pawnshop for that purpose.

The form jury instruction for burglary in CALCRIM No. 1700 does not include a consent defense for burglary, although the notes to the instruction point out that “consent by the owner or occupant of property may constitute a defense to burglary.” (Judicial Council of Cal., Crim. Jury Instns. (2011) CALCRIM No. 1700, Related Issues, Consent, p. 1226.) Therefore, the trial court drafted its own instruction on the issue after considering proposed instructions from counsel.⁴ The instruction given by the trial court stated that Sherow, Sr., had the burden of establishing, by a preponderance of the evidence, the elements of the consent defense. The trial court instructed:

“The defendant is not guilty of burglary if the occupant of the building consented to the defendant's entry into the building.

“In order to establish this defense, the defendant must prove that:

“1. Prior to the defendant's entry into the building, the occupant expressly gave to the defendant the occupant's permission for the defendant to enter the building;

“2. At the time that the occupant give his or her permission, the occupant knew that the defendant intended to enter the building for the purpose either of committing a theft or selling stolen property; and

“3. Prior to the defendant's entry into the building, the defendant knew that the occupant was aware of the defendant's illegal intention.

“The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the three listed items is true.”

At trial, defense counsel objected to the jury instruction given by the trial court “based on due process, trial by jury, confrontation, compulsory process [and] right to counsel clauses” of the state and federal Constitutions. According to defense coun...