Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE705612
Mihara, Acting P. J.
Defendant Larry Eugene Bryan appeals from a judgment of conviction entered after a jury found him guilty of eight counts of burglary (Pen. Code, §§ 459, 460, subd (a) – counts 9, 11, 12, 15, 17, 18, 19, 20), ex-felon in possession of a firearm (§ 12021, subd. (a)(1) – count 23), and resisting arrest (§ 148, subd. (a)(1) – count 24). Defendant also admitted that he had a prior serious felony conviction (§ 667, subd. (a)) and a prior “strike” conviction (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to 37 years in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
The trial court dismissed one count (count 3) of burglary prior to trial. When the jury was unable to reach a verdict, counts 1, 2, 4, 5, 6, 7, 8, 10, 13, and 16 were dismissed.
Defendant’s wife Joy Bryan was found guilty of being an accessory (count 21) and concealing stolen property (count 22). She is not a party to this appeal.
On appeal, defendant contends: (1) there was insufficient evidence to support his conviction of burglary in counts 9, 11, 12, 15, 17, and 18; (2) he was deprived of the effective assistance of counsel; (3) the trial court erred in instructing the jury pursuant to CALCRIM No. 376; and (4) his conduct credits were improperly restricted to 15 percent. For the reasons stated below, we affirm the judgment.
I. Statement of Facts
Count 9
On December 1, 2006, Liwliwa Tapang, who lived at 793 Ponderosa Avenue in Sunnyvale, left her home at approximately 3:30 p.m. At that time, everything in the house was in order and all the windows were closed. When she returned at 9:00 p.m., the windows were open. The blinds in the front of the house, which were always closed, were open. In the master bedroom, the drawers had been opened and the mattress moved. Jewelry, money, and her Louis Vuitton purse were missing. Her husband’s Breitling watch and his Smith and Wesson revolver, which were later recovered by the police, were taken. No electronic equipment, including their stereo or laptop computer, was taken.
Count 11
On December 15, 2006, Hui Zheng, who lived at 1090 Robbia Drive in Sunnyvale, left her home between 6 p.m. and 9:30 p.m. At that time, the front door was locked and the master bedroom window was closed. When she returned, the house was a mess, the front door was unlocked, and the master bedroom window and screen had been removed. Only expensive jewelry was missing. A diamond bracelet, a black and white pearl necklace, an enamel flower-design bracelet, a diamond and pearl pendant, white pearl drop earrings, black pearl earrings and necklace, and gray pearl earrings were recovered by the police. None of her jade jewelry was recovered. No electronic equipment, including a new iPod, had been taken. A neighbor’s security camera caught an SUV, which was the same make, model, and color as defendant’s SUV, drive twice on Robbia Drive around the time of the burglary.
Count 12
On December 28, 2006, Sanaz Khalili Malek and her family, who lived at 1402 Newfoundland Drive in Sunnyvale, left their home. All the doors and windows were locked. When they returned on January 2, 2007, a window and a sliding door were open, and the master bedroom had been ransacked. About $3,000 in Iranian and United States currency was missing. A gold Rolex watch, an antique ceramic flower bracelet, two Coach purses, a Louis Vuitton purse, and an Eiffel Tower pendant were also missing. The watch, jewelry, and purses were later recovered by the police. No electronic equipment, including their television or stereo, was taken.
Count 15
Umakant Gajjewar and his family, who lived at 733 Henderson Avenue in Sunnyvale, went to Las Vegas. After he received a telephone call from the police on December 28, 2006, they returned home to find a broken window and their possessions thrown out of drawers and suitcases. Jewelry was missing as well as United States and Indian currency. No electronic equipment, including their laptop, had been taken. The police later recovered Hemangi Gajjewar’s ruby and diamond heart necklace and a pearl necklace.
Count 17
On December 27, 2006, Vidal Graupera, who lived at 7442 Stanford Place in Cupertino, was gone for three or four hours in the late afternoon. While he was gone, the house was ransacked and a Beretta nine-millimeter gun was stolen. The gun was later recovered by the police. No electronic equipment was taken.
Count 18
On December 29, 2006, Sunil Kolte and his family lived at 7409 Rollingdell Drive in Cupertino. They left their home at 5:45 p.m. and returned at 7:45 p.m. to find that the porch lights were off, the front door was unlocked, and the backyard window was smashed. A closet was ransacked and jewelry was missing. The police later recovered “grape” stud earrings, diamond stud earrings, pearl and ruby earrings, opal earrings, pearl and gold in “another grape design” earrings, gold hoop earrings with a diamond design, and diamond cross earrings. None of their electronic equipment was missing.
Count 19
In December 2006, Chee Ong traveled to Vancouver. On December 30, 2006, he received telephone calls from his alarm company and the police. He returned to his home at 1447 Flicker Way in Sunnyvale the following day. He found the alarm system had been cut from the wall and the master bedroom was a mess. The screens on the master bedroom windows had been crimped at an angle and the back door was open. The only item missing was a silver Tiffany bear charm, which was recovered by the police. None of his electronic equipment was taken.
Officer Greg Wilson went to Ong’s house after the alarm went off. He noted that the curtains in the front bedroom were hanging normally, but one section had been separated. One could then see out to the driveway and the front of the house. According to Officer Wilson, it was less than two miles from Flicker Way to Mahogany Lane where the burglary in count 20 occurred.
Count 20
At about 7:50 p.m. on December 30, 2006, the Sheridans returned to their home at 779 Mahogany Lane in Sunnyvale. Kristin Sheridan entered the house before the rest of the family. After she put her purse and the newspaper on the kitchen table, she heard the sound of dresser drawers opening and closing. She went outside, told her husband to call 911, and took her children to a neighbor’s house. The police arrived within a few minutes.
When Kristin Sheridan was allowed back into her house, she noticed that a back window was open and the screen had been removed. Her purse was still on the table, but it and her wallet had been opened. Someone had also rifled through and dumped a jewelry pouch that was in her bedroom. After defendant was arrested, the police brought her some items. She identified a silver chain and pendant as hers.
As Patrick Sheridan spoke with the officer who first responded to the scene, the front door of his house opened. He did not recognize the man who stood in the doorway. Though the officer yelled at the man to stop, he retreated into the house and closed the door. Patrick Sheridan was unable to identify defendant at trial as this man. However, the clothing worn by defendant in a photograph, which was taken shortly after his arrest, was consistent with the clothing worn by the intruder.
Officer Hyun Choi was the first officer to respond to the scene. Officer Choi identified defendant as the man who was standing at the Sheridans’ front door. When the officer told defendant to stop, he ignored him and retreated into the house. Officer Choi broadcast the description of the suspect as a white male, who had short brown hair and was wearing a blue sweatshirt and blue jeans. After other officers arrived, Officer Choi went to the back and heard the sound of someone leaving.
When Officer Shannon Griffiths first saw defendant, defendant was removing his gloves. Additional officers arrived at the scene and detained defendant in the yard of a residence, which was a few doors away from the Sheridan residence. Defendant had a screw driver, flashlight, money, car key and jewelry in his pockets, including Kristin Sheridan’s silver chain and pendant and Ong’s bear charm.
Officer Griffiths found defendant’s car near the Sheridan residence. The hood was warm. He saw an orange bag and a Rolex watch box in the back seat. Officers later found Sanaz Malek’s Rolex watch and her Coach and Louis Vuitton bags on the rear floorboard.
Though the car was registered in Joy Bryan’s name, defendant received numerous citations in the vehicle.
Other Evidence
On December 31, 2006, Officer Christopher Searle served a search warrant at defendant’s residence. Joy Bryan was present. Officer Searle found thousands of pieces of jewelry, $14,000 in cash, and various denominations of foreign currency.
On January 4, 2007, Officer Searle returned to defendant’s house with a second search warrant. He found an area of fresh dirt in the backyard and dug up bags containing guns, jewelry, and coins. There were also index cards with names, addresses, and telephone numbers and spiral notebooks with vehicle descriptions and license plate numbers in the garage. The index cards and notebooks were not connected to any of the charged burglaries or possession of stolen property.
Some of the items stolen in the charged offenses were found in defendant’s pockets, car, house, and backyard. Many items of jewelry seized from defendant’s house were never identified as stolen.
Robin Rivera, a foreign currency consultant, testified that defendant had been a regular client since 1999. She saw him once or twice every two to three months. She had many regular customers, which she did not consider unusual given the area. Rivera was required to record transactions over $1,000. Defendant had a few transactions over this amount and he provided Rivera with satisfactory explanations as to the source of the money.
Susan Annino, a clerk with the permits unit of the San Jose Police Department, testified that a jeweler or second-hand dealer of jewelry is required to obtain a permit. Annino searched the database by address and found that Joy Bryan had a permit as a card room employee, but there was no permit on file at that address for “any type of buying or selling of jewelry.”
Detective Jeffrey Hunter testified that there was an increase in burglaries beginning in November 2006. Burglaries typically occur during the day, but these burglaries occurred in the early to late evening. He also noticed that only “higher priced” jewelry, cash, and firearms were taken, and the victims were primarily Asian or East Indian and Middle Eastern. No electronic equipment was ever taken. Detective Hunter would typically encounter doors that had been pried open, but in these cases windows had been pried open. After defendant’s arrest, there was a drop in burglaries in which only jewelry or cash was taken.
Defendant had several telephone calls from jail in which he discussed his car, the police chase, and the items found during the search of his residence. On December 31, 2006, defendant told his wife where his car was located, and that his “bag” and “box” were located in the back seat. A few hours later, they discussed the search of their residence. She explained that the police did not find certain items, because she had hidden them. Defendant also directed her to move other items from their present locations and reminded her to “watch what you say on these phones now.” On January 1, 2007, defendant called his wife and asked about certain boxes. His wife replied that she had already taken care of them. He also asked twice whether she had called about his car. On the same day, defendant spoke with his stepdaughter Victoria F. Victoria believed that there was no evidence against defendant, but he reminded her that he had jewelry in his pockets when he was arrested. They then speculated that this jewelry could have been given to him by the person who actually stole it. Defendant also described how he was chased by the police, which they found amusing. In another conversation, defendant and Victoria discussed the evidence against him, and concluded that he was guilty of nothing more than possession of stolen property. Defendant told her that “[t]he owner of the house says he seen me coming out the front door of the house but that is a lie.... All they did is caught me four or five houses down.” Defendant also observed that “when they got the car they got the Rolex watches and the purses that were in the back.” Victoria urged defendant to get a lawyer.
It was stipulated that defendant had previously been convicted of a felony for purposes of the possession of a firearm by an ex-felon charge. It was also stipulated that Brittany B., defendant’s and Joy Bryan’s daughter, saw Joy Bryan bury a brown bag in the backyard on December 31, 2006.
Defense Case
Victoria, who was 17 years old at the time of trial, testified that defendant bought and sold jewelry at their home and that the jewelry had been on display until recently. She explained that when the family moved a few years ago into a much smaller home, the jewelry was transferred into boxes and bags. After the family moved into an apartment before moving into their present residence, the jewelry remained in boxes.
According to Victoria, the relationship between defendant and her mother “got kind of rough” over the previous two years. Their paths rarely crossed, because her mother went to work at 12:00 a.m. when defendant returned home, and defendant left the house when her mother returned from work. Victoria believed that defendant was having an affair with another woman. After defendant’s arrest, it was difficult for the family because the police took their savings. Victoria also explained that she was laughing and joking with defendant about the charges, because she wanted to cheer him up. Victoria could not provide an alibi for defendant for any of the charged offenses.
Brittany, who was 14 years old at the time of trial, testified that she saw defendant buying and selling jewelry. People would come to the house every day to sell their jewelry. According to Brittany, defendant called from jail and asked to speak to her mother. Brittany told him that “she’s burying it.” Defendant then said, “Don’t say.” Brittany did not believe that defendant had an affair.
II. Discussion
A. Sufficiency of the Evidence
Defendant contends that there was insufficient evidence to establish that he was the person who burglarized the residences in counts 9, 11, 12, 15, 17, and 18.
Generally, “[t]he proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) We also review “the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Griffin (2004) 33 Cal.4th 1015, 1028.)
In order to be found guilty of residential burglary, the evidence must establish that the defendant entered an inhabited dwelling with the intent to commit larceny or any felony. (§§ 459, 460, subd. (a).) Possession of stolen property alone is insufficient to sustain a burglary conviction. (People v. Mendoza (2000) 24 Cal.4th 130, 176 (Mendoza).) However, where there is also slight corroborating evidence of the defendant’s acts, conduct, or declarations tending to show his guilt, there is sufficient evidence to support a burglary conviction. (Ibid.) Evidence of flight, false statements, failure to show that possession of the stolen property was honestly obtained, and attempts to conceal are examples of such corroborating evidence. (People v. Howell (1954) 126 Cal.App.2d 780, 784; People v. McClure (1955) 133 Cal.App.2d 631, 633.) Burying property in the ground is an attempt to conceal it. (People v. Sanchez (1965) 232 Cal.App.2d 812, 816-817.)
Count 9 charged defendant with the December 1, 2006 burglary of Tapang’s residence in which a Smith and Wesson revolver and a Breitling watch were taken. The revolver was buried in defendant’s backyard and the watch was in a cabinet in defendant’s house. Since concealment tends to show guilt, there was sufficient corroborating evidence to sustain the conviction as to count 9. (Mendoza, supra, 24 Cal.4th at p. 176.)
Count 11 charged defendant with the December 15, 2006 burglary of Zheng’s residence in which several items of jewelry were taken. Some of these items were recovered in defendant’s bedroom or buried in his backyard. A neighbor’s security camera caught an SUV, which was the same make, model, and color as defendant’s SUV, driving twice down Zheng’s street near the time of the burglary. Thus, the concealment of property and the presence of a vehicle similar to defendant’s near the time of the burglary was sufficient corroborating evidence to sustain the conviction as to count 11. (Mendoza, supra, 24 Cal.4th at p. 176.)
Count 12 charged defendant with the December 28, 2006 burglary of the Malek residence in which a Rolex watch, the box for the watch, an antique bracelet, two Coach purses, a Louis Vuitton purse, and an Eiffel Tower pendant were taken. Three days later, defendant spoke to his wife from jail. He gave her directions to find his car and told her that his “bag” and “box” were in the back seat. The police, however, had already found his car near the Sheridan residence, and had found the Malek property on the rear floorboard. The following day, defendant had another conversation from jail with his wife in which he twice expressed concern that she had not “call[ed] about the car.” Later the same day, he also discussed the charges against him with Victoria, and he acknowledged that not all of the charges were “faulty,” because the police found his car and “they got the Rolex watches and the purses that were in the back.” Thus, defendant’s conversations with his wife and stepdaughter established that he knew the items were stolen. A rational trier of fact could also reasonably infer that defendant told his wife about the property in the back seat so that she could conceal it, as she had done with the other stolen property. Accordingly, there was sufficient corroborating evidence to support the burglary conviction as to count 12. (Mendoza, supra, 24 Cal.4th at p. 176.)
Count 15 charged defendant with the burglary of the Gajjewar residence in which a ruby and diamond heart necklace and a pearl necklace were taken. The ruby and diamond necklace was found buried in defendant’s backyard. As previously stated, concealment of the property was sufficient corroborating evidence to sustain the burglary conviction as to count 15. (Mendoza, supra, 24 Cal.4th at p. 176.)
Count 17 charged defendant with the December 27, 2006 burglary of the Graupera residence in which a Beretta nine-millimeter gun was taken. Since the gun was buried in defendant’s backyard, there was sufficient corroborating evidence to sustain the burglary conviction as to count 15. (Mendoza, supra, 24 Cal.4th at p. 176.)
Count 18 charged defendant with the December 29, 2006 burglary of the Kolte residence in which “grape” stud earrings, diamond stud earrings, pearl and ruby earrings, opal earrings, pearl and gold in “another grape design” earrings, gold hoop earrings with a diamond design, and diamond cross earrings were taken. The police recovered this property from defendant’s bedroom during the execution of the first search warrant. The following day, defendant had a conversation with his wife from jail in which he discussed the stolen property found in his bedroom. Defendant asked what had been taken out of his closet. His wife replied that the police had taken everything but the white bag, because she hid it underneath the bed. Defendant then told her that she needed to “move it from there.” Defendant next asked his wife, “how about that other thing that was uh behind, behind that box – you do anything with that?” She replied that she was going to move it. He also asked her to take care of something hidden in or near some green bathroom rugs, but his reference was so vague that he asked, “Do you know what I am talking about?” Thus, defendant’s conversation with his wife refuted his claim that the jewelry found in his house was related to his business of buying and selling jewelry. Accordingly, these statements provided sufficient corroborating evidence to sustain the conviction as to count 18. (Mendoza, supra, 24 Cal.4th at p. 176.)
In sum, defendant was in possession of the property stolen in counts 9, 11, 12, 15, 17, and 18, and thus only slight corroborating evidence was required to sustain these convictions. (Mendoza, supra, 24 Cal.4th at p. 176.) Defendant’s attempts to conceal the stolen property by burying it, and his conversations with his wife regarding the concealment of the property, refuted his claim of a legitimate jewelry business. This evidence as well as the cessation of burglaries in the area after his arrest provided sufficient corroborating evidence. (Ibid.)
B. Ineffective Assistance of Counsel
Defendant argues that he received ineffective assistance of counsel, because trial counsel failed to object to irrelevant evidence of his marital infidelity and request a limiting instruction. He also claims that trial counsel was incompetent for failing to request a mistrial when the prosecutor referred to his “high priced counsel” during closing argument.
“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721.)” (People v. Williams (1997) 16 Cal.4th 153, 215.)
During the presentation of Joy Bryan’s case, her counsel elicited testimony from Victoria that she believed defendant was having an affair and that the paths of defendant and her mother rarely crossed. However, Brittany testified that she did not believe defendant had an affair.
Defendant acknowledges that this evidence was relevant to Joy Bryan’s case, because it tended to show that she would not have been involved in covering up the burglaries. However, he asserts that the evidence was “utterly irrelevant” and “nothing more than inadmissible bad character evidence designed to engender moral outrage against him, making it easier to find him guilty.”
We agree with defendant that the evidence was irrelevant as to any issue relating to defendant’s case. However, trial counsel’s performance is “ ‘a question of judgment and degree that must be assessed in light of all the circumstances of the case and with a view to fundamental fairness.’ ” (People v. Bolin (1998) 18 Cal.4th 297, 314, quoting People v. Whittington (1977) 74 Cal.App.3d 806, 820.) An attorney may reasonably conclude that the risk of a limiting instruction that calls attention to the evidence outweighs the questionable benefit of such an instruction. (People v. Maury (2003) 30 Cal.4th 342, 394.)
The prosecutor objected to the questions concerning defendant’s alleged affair, but the trial court did not find the evidence irrelevant. Trial counsel could have reasonably concluded that any objection by him was unnecessary.
Here, Joy Bryan’s daughters were asked only one question about defendant’s infidelity. Though Victoria had no direct evidence of infidelity, she believed that he was having an affair. Brittany, who lived with defendant and Joy Bryan, did not agree. Thus, trial counsel could have made the tactical decision not to request a limiting instruction on this evidence, because he did not want to call the jury’s attention to it. Even assuming that trial counsel was incompetent for failing to object to the evidence and request a limiting instruction, defendant has failed to show prejudice. The evidence against defendant was extremely strong. Moreover, the jury was instructed that defendant was presumed innocent, that it was required to decide the case based on the evidence presented at trial, that it could not let bias, prejudice, or public opinion influence its decision. It was also instructed on how to evaluate conflicting evidence and the opinion testimony of a lay witness. Thus, even if the evidence of defendant’s alleged affair had been limited to Joy Bryan’s case, it is not reasonably probable that the result of the trial would have been more favorable to him.
Defendant next contends that trial counsel rendered ineffective assistance when he failed to request a mistrial.
During closing argument, trial counsel made the following argument: “What do burglaries -- the crime of burglary and the crime relating to drugs have in common? Well, law enforcement has very little impact on it. [¶] For years, we’ve had a war on drugs. We announce major arrests, major seizure shipments. Drugs are cheaper on the street today than they’ve ever been. You can buy marijuana, you can buy cocaine cheaper today than you could at any time in history, when you factor in cost of living. Law enforcement has had no effect on drugs. [¶] There are a lot more people out there buying and selling drugs than you have any idea. [¶] Burglars are the same way. Using their statistics, which are flawed, Sunnyvale Police Department says they cleared 11 percent of their burglaries, and you have to remember, half of the burglaries they cleared in 2006 were blamed on him, so they’re having very little impact. [¶] Burglaries are pretty constant, and they continue, and just like drug dealers, there are a lot of burglars out there. They’re full-time, but a lot of burglars, an[d] they’re rarely fairly caught. [¶] Of all the property stolen that we’ve talked about in this case, probably less than 10 percent of it has been recovered. A lot of it was melted down, being sold, fenced, who knows what. [¶] Reality is law enforcement has no impact on the rate of burglaries or the apprehension of burglaries. It is almost the luck sort of situation.... [¶]... [¶] The problem is -- and I say this without criticism -- burglary detectives, people involved in burglary suppression, burglary prosecution have the same mentality as people involved in enforcement of drug laws. [¶]... [¶] If you have ever been in a job where you have had a task that didn’t have much impact on what were you doing or any results, we normally fib to ourselves. You see some good out of it, even when we know -- and you look at the statistics, you look at the research, you just go home and watch television. [¶] Now, in no way am I minimizing the hard work police officers do.... [¶] But I want to tell you they have a vested interest in what they say.... They have a vested interest in what they believe. Their opinions and conclusions, they’re human beings. They’re self-validating, just like everyone in this room. It is the coping mechanism that makes life tolerable. We all do it in different areas. [¶]... [¶] It is a point of view. It is a perception. And guess what? You are the first truly objective people, truly objective neutrals, neutrals that have a rule book that have to analyze whether or not he has done everything he is charged with. [¶] No one else has been in that position up until now. There is good reason we don’t leave it to police and district attorneys to be the final say. There are countries that have those. This isn’t one of them.”
In her closing argument, the prosecutor argued: “Now, [trial counsel], thankfully, is here to save you all. He is here to save you from the police department and from the deputy district attorney, in this particular case myself, because we’re all so despondent at the, you know, our effect on crime that really we’ve lost our way, and we’ve lost all critical thinking. [¶] He is here to be objective and rational and show you the light. This highly paid defense attorney, he is neutral.” The trial court then sustained a defense objection and stated: “The last phrase will be stricken as testimony and irrelevant and without foundation. The general comments that began that [way] are now stricken.”
“A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.] Accordingly, it would be a rare case in which the merits of a mistrial motion were so clear that counsel’s failure to make the motion would amount to ineffective assistance. Nonetheless, defendant could conceivably prove incompetence if his counsel’s omission was shown to be grounded in ignorance or misapplication of the law rather than tactical considerations [citations] and if the motion for mistrial bore strong potential for success.” (People v. Haskett (1982) 30 Cal.3d 841, 854-855.)
Here, there is nothing in the record to indicate that trial counsel misunderstood or misapplied the law. Counsel promptly objected to the prosecutor’s statement, and it was stricken. One can reasonably assume that counsel was also aware of the option of bringing a mistrial motion. However, counsel may have reasonably concluded that bringing such a motion would not have been in defendant’s best interests. Counsel may have determined that the chance of a successful motion was minimal and wanted to avoid antagonizing the judge and jury.
We also conclude that it is unlikely the trial court would have granted a mistrial motion. The trial court’s instruction to disregard the statement was clear. Since the jury is presumed to follow instructions to ignore inadmissible statements (see, e.g., People v. Bryden (1998) 63 Cal.App.4th 159, 184), the trial court could have reasonably concluded that its admonition and instructions were sufficient to cure any prejudice.
Relying on People v. Fabert (1982) 127 Cal.App.3d 604, 610-611, and People v. Schindler (1980) 114 Cal.App.3d 178, 186-187, defendant argues that the prosecutor’s statement was an impermissible comment on defendant’s exercise of his Sixth Amendment right to counsel, and thus requires reversal of the judgment. We disagree. Here, the prosecutor did not comment on defendant’s request for counsel. Instead, she argued that he was neither an objective nor a neutral party because he was paid to represent defendant.
Defendant’s reliance on Bruno v. Rushen (9th Cir. 1983) 721 F.2d 1193 is also misplaced. In that case, the prosecutor argued that defense counsel had engaged in witness tampering, though the accusation was not supported by any evidence, and suggested that the accused’s hiring of counsel was probative of his guilt. (Id. at p. 1194.) The appellate court affirmed the order granting a petition for habeas corpus. (Id. at p. 1195.) No such egregious statements were made by the prosecutor in the present case.
C. CALCRIM No. 376
Defendant contends that the burglary convictions in counts 9, 11, 12, 15, and 17 must be reversed, because the trial court erred in instructing the jury that his possession of recently stolen property was sufficient proof of guilty if there was slight corroborative evidence. He asserts that the use of the word “slight” impermissibly dilutes the reasonable doubt standard, thereby violating his constitutional right to due process.
The trial court instructed the jury pursuant to CALCRIM No. 376: “[I]f you conclude that a defendant knew he or she possessed property and you... conclude that the property had, in fact, been recently stolen, you may not convict a defendant based on those facts alone. However, if you also find that supporting evidence tends to prove his or her guilt, then you may conclude that the evidence is sufficient to prove that he or she committed the crime. [¶] Supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his or her guilt of a crime. [¶] Remember that you may not convict either defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.”
Defendant recognizes that his contention was rejected in People v. Snyder (2003) 112 Cal.App.4th 1200 (Snyder) with regard to a comparable instruction, CALJIC No. 2.15. The Snyder court concluded that “CALJIC No. 2.15 does not create an improper presumption of guilt arising from the mere fact of possession of stolen property, or reduce the prosecution’s burden of proof to a lesser standard than beyond a reasonable doubt. Rather, the instruction ‘relates a contrary proposition: a burglary [or robbery] may not be presumed from mere possession unless the commission of the offense is corroborated.’ [Citation.] The inference permitted by CALJIC No. 2.15 is permissive, not mandatory. Because a jury may accept or reject a permissive inference ‘based on its evaluation of the evidence, [it] therefore does not relieve the People of any burden of establishing guilt beyond a reasonable doubt.’ [Citation.] Requiring only ‘slight’ corroborative evidence in support of a permissive inference, such as that created by possession of stolen property, does not change the prosecution’s burden of proving every element of the offense, or otherwise violate the accuser’s right to due process unless the conclusion suggested is not one that reason or common sense could justify in light of the proven facts before the jury.” (Snyder, at p. 1226.)
CALJIC No. 2.15 states: “If you find that a defendant was in [conscious] possession of recently [stolen] [extorted] property, the fact of that possession is not by itself sufficient to permit an inference that the defendant ______ is guilty of the crime of ______. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant’s guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt. As corroboration, you may consider [the attributes of possession—time, place and manner,] [that the defendant had an opportunity to commit the crime charged,] [the defendant's conduct,] [[his] [her] false or contradictory statements, if any,] [and] [or] [other statements [he] [she] may have made with reference to the property] [a false account of how [he] [she] acquired possession of the stolen property] [any other evidence which tends to connect the defendant with the crime charged].”
In People v. Williams (2000) 79 Cal.App.4th 1157, 1173 (Williams), this court stated that “an inference of guilt may rationally arise from the concurrence of conscious possession and many other circumstances.” CALCRIM No. 376, like CALJIC No. 2.15, “correctly prohibits the jury from drawing an inference of guilt solely from conscious possession of recently stolen property but properly permits the jury to draw such an inference where there is additional corroborating evidence. As long as the corroborating evidence together with the conscious possession could naturally and reasonably support an inference of guilt, and that inference is sufficient to sustain a verdict beyond a reasonable doubt, we discern nothing that lessens the prosecution's burden of proof or implicates a defendant's right to due process.” (Ibid.; see also Mendoza, supra, 24 Cal.4th at pp. 176-177.) For these reasons, we reject defendant’s contention.
United States v. Gray (5th Cir. 1980) 626 F.2d 494 (Gray) and United States v. Hall (5th Cir. 1976) 525 F.2d 1254 (Hall) do not support defendant’s position. In Gray and Hall, the courts held that conspiracy instructions permitting the jury to tie a defendant to a conspiracy with only slight evidence impermissibly lowered the reasonable doubt standard. (Gray, at p. 500; Hall, at pp. 1255-1256.) In contrast to those instructions, CALJIC No. 376 requires the jury to find that “each fact” essential to the defendant’s guilt “has been proved beyond a reasonable doubt.” Thus, Gray and Hall are distinguishable from the present case.
D. Presentence Conduct Credits
Defendant also challenges the limitation of his presentence conduct credits to 15 percent.
Presentence conduct credits may be restricted under certain circumstances. Thus, “any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit....” (§ 2933.1, subd. (a).) One of the felonies listed in section 667.5, subdivision (c) is “[a]ny burglary of the first degree... wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.” (§ 667.5, subd. (c)(21).)
Defendant argues that there was insufficient evidence to support the finding that Kristin Sheridan was present “during the commission of the burglary” in count 20 for purposes of section 667.5. He claims that the burglary was complete before she entered her home, because a burglary is complete when entry is made with the requisite intent.
Defendant relies on People v. Garcia (2004) 121 Cal.App.4th 271 (Garcia), People v. Rehmeyer (1993) 19 Cal.App.4th 1758 (Rehmeyer), and People v. Escobar (1992) 7 Cal.App.4th 1430 (Escobar) to support his claim. However, none of these cases considered the question presented in this case. At issue in Garcia was when an entry occurs for purposes of the burglary statute. (Garcia, at pp. 280-281.) In Rehmeyer, the issue was whether the defendant had the requisite felonious intent when he entered the victim’s home (Rehmeyer, at pp. 1767-1769), and, in Escobar, the court considered whether a perpetrator’s felonious intent continues when he makes multiple entries into a residence. (Escobar, at p. 1437.)
In People v. Alvarado (2001) 87 Cal.App.4th 178 (Alvarado), this court rejected the same argument in a different context. In Alvarado, the issue was whether the defendant committed a rape “during the commission of a burglary” for purposes of imposing a life term under section 667.61. (Alvarado, at p. 183.) The defendant argued that the burglary was complete when he entered the residence with the intent to commit a theft or any felony, and thus a rape after the burglary was committed was not a rape “during the commission of a burglary.” (Alvarado, at p. 185.) After rejecting the defendant’s interpretation as “patently absurd,” the Alvarado court examined cases that interpreted statutes providing additional consequences for conduct performed during the commission of a felony. (Alvarado, at pp. 187, 188-190.) These cases “adopted the broad continuous-transaction test for the duration of a felony, including the perpetrator’s escape to a place of safety.” (Alvarado, at p. 189.) This court then held that “during the commission of a burglary,” as used in section 667.61, “refers to that period of time between the burglar’s initial entry with the requisite intent and the burglar’s escape to a place of temporary safety.” (Alvarado, at p. 191.) We agree with Alvarado’s reasoning and adopt its construction of the phrase “during the commission of a burglary” in the present case.
Defendant does not challenge Alvarado’s holding. Instead, he argues that Kristen Sheridan’s “only momentary presence” in her home is distinguishable from those circumstances in which a victim is present in the home for a longer period. We disagree. Regardless of the length of time that a victim is present in a residence, there is a chance of a violent confrontation between the perpetrator and the victim. Thus, we reject defendant’s attempt to distinguish Alvarado on this ground.
Given our conclusion that a burglary continues until the perpetrator reaches a place of temporary safety, we consider the evidence in the present case. Here, when the Sheridans returned to their home on December 30, 2006, Kristin Sheridan entered the house before the rest of the family. After she put her purse and the newspaper on the kitchen table, she heard the sound of dresser drawers opening and closing. She went outside and told her husband to call 911. The police arrived within a few minutes. While Patrick Sheridan was speaking to Officer Choi, defendant opened the front door of the Sheridan residence. When the officer told him to stop, defendant retreated into the house. Defendant was eventually apprehended, and Kristin Sheridan returned to her house to discover that her purse and wallet were open. Thus, there was substantial evidence to support the finding that a person, other than an accomplice, was present in the Sheridan residence during the commission of the burglary.
Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), defendant next argues that he “had a constitutional right to a jury trial of all facts used to increase his sentence beyond the normal statutory scheme.”
In Apprendi, the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) In that case, the court focused on “the narrow issue” of whether the sentence for a single crime exceeded the statutory maximum. (Ibid.) The court further defined the statutory maximum in Blakely, supra, 542 U.S. 296. It concluded that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.... In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose without any additional findings.” (Blakely, at pp. 303-304.)
In Garcia, supra, 121 Cal.App.4th 271, the appellate court rejected the argument that defendant has made in this case. The court stated: “[S]ection 2933.1, subdivision (c)’s limitation on presentence conduct credits is not a sentencing enhancement and does not operate to increase the maximum six-year penalty prescribed for first degree burglary. [Citation.] Rather, the provision for presentence conduct credits function as a sentence ‘reduction’ mechanism outside the ambit of Apprendi. [Citations.]... Lessening the ‘discount’ for good conduct credit does not increase the penalty beyond the prescribed maximum punishment and therefore does not trigger the right to a jury trial identified in Apprendi. [Citations.]” (Garcia, at p. 277; see also People v. Murphy (2004) 124 Cal.App.4th 859, 864 [the statutory maximum is not increased when trial court refuses to dismiss prior strike finding, thereby lessening discount for good conduct credit].) We agree with Garcia.
Defendant contends that Garcia is “ill-reasoned and should not be followed by this court.” He relies on Weaver v. Graham (1981) 450 U.S. 24 and Lynce v. Mathis (1997) 519 U.S. 433. However, at issue in those cases was whether statutes affecting the length of a defendant’s sentence by either retroactively removing gain time credits or altering early release provisions violated ex post facto provisions. Here, there is no issue of retroactive application of the statutes governing presentence conduct credits.
Defendant next argues that he had a statutory right to a jury trial. He notes that section 667.5, subdivision (c)(21) limits presentence credits “only as to first degree burglaries where ‘it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.’ ” (Emphasis in original.)
The Garcia court also rejected this argument. “We agree that, just as the trial court properly determines as a matter of state law whether a prior conviction qualifies as a strike [citation], so too determining whether a defendant’s current conviction for first degree burglary is a violent felony is properly part of the trial court’s traditional sentencing function. [¶] The ‘charged and proved’ terminology of section 667.5, subdivision (c)(21) itself does not mandate a jury determination of the issue of a nonaccomplice’s presence at the timing of the offense: This language is markedly different from that used by the Legislature when it wanted to extend to a defendant the right to have a factual issue tried to the jury or the court acting as the trier of fact.... [¶] The pleading and proof requirements of section 667.5, subdivision (c) safeguard the defendant’s right to notice of the facts the prosecution intends to prove as well as the due process requirement that the People actually prove the facts required either for imposing an increased penalty or for making decisions regarding the severity of the sentence within the prescribed range. [Citations.] As with other sentencing facts, however, proof that a first degree burglary falls within section 667.5, subdivision (c)(21), is properly presented to the sentencing court. (See People v. Scott (1994) 9 Cal.4th 331, 348-350.)” (Garcia, supra, 121 Cal.App.4th at pp. 278-279, fns. omitted.)
Defendant argues that Garcia “is ill-reasoned on this score.” He claims that “the opinion ignores the plain wording of the statute... and can be ‘proved’ only to a jury, and instead relies on a strained interpretation, based on the Legislature’s actions with respect to other, unrelated statutes.” First, as Garcia recognized, section 667.5, subdivision (c)(21) does not specify to whom the issue of another’s presence during a burglary must be proven. (Garcia, supra, 121 Cal.App.4th at p. 278.) Thus, contrary to defendant’s claim, “the plain wording of the statute” is not dispositive. Second, like the Garcia court, we are not persuaded that the use of different language in statutes governing sentence enhancements indicates a legislative intent to provide a jury trial on the issue of the restriction of presentence custody credits. Had the Legislature chosen to provide this right, it could have added explicit language to section 667.5, subdivision (c)(21).
III. Disposition
The judgment is affirmed.
WE CONCUR: McAdams, J., Duffy, J.