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People v. Thorn

July 31, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RICHARD THORN, DEFENDANT AND APPELLANT.



(San Mateo County Super. Ct. No. SC065210), Hon. Jonathan E. Karesh.

The opinion of the court was delivered by: Jenkins, J.

CERTIFIED FOR PUBLICATION

Defendant and appellant Richard Thorn (Thorn) appeals his jury-trial conviction for first-degree burglary in violation of Penal Code, section 460, subdivision (a).*fn1 Thorn contends his conviction should be reversed because the carport area where he committed the offense does not fall within the ambit of the burglary statutes. Thorn also contends the conviction should be reversed because the trial court directed a verdict of guilty on the first degree burglary charge by the manner in which it instructed the jury on the charge. As explained more fully below, we find these contentions unpersuasive, and therefore affirm.

PROCEDURAL BACKGROUND

On December 24, 2007, the San Mateo County District Attorney filed an information charging defendant with the following offenses: count 1-commercial burglary, a felony (§ 460, subd. (b)); count 2-automobile burglary, a felony (§ 460, subd. (b)); count 3-first-degree burglary of an inhabited dwelling house, a felony (§ 460, subd. (a)); count 4-being under the influence of a controlled substance, a misdemeanor (Health & Saf. Code, § 11550, subd. (a)); count 5-possession of drug paraphernalia, a misdemeanor (Health & Saf. Code, § 11364); and count 6-possession of a burglary tool, a misdemeanor (§ 466).

During trial on February 21, 2008, the People filed an amended information to change the name of the defendant from Ray Glass to Richard Thorn and to insert the correct date for certain prior convictions. The People also dismissed count 1 (commercial burglary) in the interests of justice.

As amended, the information alleged that Thorn suffered two prior serious felony convictions for first-degree burglary in June 1994, pursuant to section 667, subdivision (a). The information alleged the same two convictions for first-degree burglary were strike convictions within the meaning of section 1170.12, subdivision (c)(1). Additionally, the information alleged Thorn had ten prior felony convictions between May 1986 and June 2000 for purposes of section 1203, subdivision (e)(4). Further, the information alleged six prior felonies for purposes of section 667.5, subdivision (b).

On February 22, 2008, the jury returned a verdict of not guilty on count 2 (automobile burglary)*fn2 and a verdict of guilty on the lesser charge of vehicle tampering, in violation of Vehicle Code, section 10852. The jury also found defendant not guilty on count 6 (possession of a burglary tool). The jury returned guilty verdicts on count 3 (first-degree residential burglary), count 4 (under the influence of a controlled substance), and count 5 (possession of drug paraphernalia).

After the jury was dismissed the court held a bench trial on the alleged prior convictions. The trial court found all the prior conviction allegations true beyond a reasonable doubt. Furthermore, pursuant to section 667.5, subdivision (b), the trial court found that defendant had not remained free of prison custody for a five-year period between any of the priors alleged. The prosecution dismissed one of Thorn‟s prior two strike convictions for first-degree burglary in the interests of justice.

At the sentencing hearing on April 18, 2008, the trial court granted Thorn‟s Romero motion.*fn3 The trial court noted the strike dated from 1993, Thorn‟s criminal background was non-violent and mostly drug related, and that the current offense, although "not [] trivial," would have been a misdemeanor if the vehicle had "been parked five or six feet outside of that carport." "[I]n view of the really de minimus nature of the offense and the fact that the defendant is going to be going to prison," the trial court struck Thorn‟s remaining strike conviction under Romero. Thereupon the trial court imposed an aggregate sentence of seven years imprisonment, comprised of the low term of two years on count 3 (first-degree burglary) plus five consecutive years pursuant to section 667, subdivision (a). Thorn filed a timely notice of appeal on the day of sentencing.

FACTS

The facts are adduced from the witness testimony and photographic evidence submitted at trial. In October 2007, Jose Hernandez and his wife lived at the apartment building at 50 Hillcrest Drive in Daly City where the burglary took place. On the evening in question, Hernandez parked his vehicle in his parking stall underneath the apartments on the ground floor of the building. On the way to his apartment on the level above the carport area, Hernandez met the "lady in Apartment 4." The lady pointed out an African-American man and told Hernandez she‟d seen the man looking into the cars parked in the carports below. Hernandez saw the man walking around a red car parked in one of the carports. After Hernandez saw the man get into the red car, he went to his apartment and dialed 911. As he was talking to the 911 operator, Hernandez went back to observe the man‟s activities in the carport. Hernandez watched as the man got in and out of the driver‟s side, front passenger side, and back seat of the red car. One time the man got out of the car with a screwdriver in his hand. Hernandez stayed on the phone with the 911 dispatcher until the police arrived. Hernandez watched as the man got out of the red car for the last time and saw the police contact him as he tried to walk away.

Luis Arias also lived at the apartment building in October 2007. At that time, Arias was driving a red Volkswagen Jetta belonging to his cousin. Arias parked the vehicle at the apartment building in his designated parking stall between 5:00 and 6:00 p.m. on the evening in question. Arias recalled he locked the car when he parked it. The police contacted Arias about his car around 11:00 p.m. When Arias went to view the car the police asked him if anything was missing. Arias noticed the stereo was missing from the dashboard. The stereo had been placed in his daughter‟s backpack, which was lying on the driver‟s seat. An amplifier had been removed from underneath the passenger seat and placed inside his daughter‟s backpack. Beside his daughter‟s backpack was a "plastic bag with beers in it" that did not belong to Arias. When Arias parked the car earlier that evening, his daughter‟s backpack had been in the back seat.

A police officer apprehended Thorn on the public sidewalk adjacent to the apartment building between the building‟s courtyard and the street. When stopped by the officer, Thorn removed an object from his waist band and dropped it. A screwdriver was later recovered underneath an adjacent parked car. In the subject vehicle, police found a stereo, an amplifier inside a backpack, and two white plastic Safeway bags containing beers and items of clothing. An officer who was dispatched to the apartment building regarding the reported burglary in progress arrived to find a suspect (Thorn) already in custody. The officer realized he had seen Thorn about 20-30 minutes before he ...


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