APPEAL from the Superior Court of Riverside County. Michele D. Levine, Judge. Affirmed. (Super. Ct. No. RIF135376).
The opinion of the court was delivered by: Gaut J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant David Christopher Ulloa appeals from judgment entered following jury convictions for first degree, residential burglary (count 1; Pen. Code, § 459)*fn2; receiving stolen property (count 2; § 496, subd. (a)); and misdemeanor vandalism (count 3, § 594, subd. (b)). Defendant was sentenced to three years of formal probation and 120 days in jail.
Defendant contends he did not commit burglary as a matter of law because he was a cotenant in the apartment where the alleged burglary occurred. Defendant alternatively argues the trial court erred in not instructing the jury on property law principles required to assess his right to enter the apartment. Defendant also asserts there was insufficient evidence supporting his conviction for receiving stolen property and, alternatively, that the court erred in not instructing the jury on community property law principles relating to the alleged stolen property. Defendant further contends the court erred in failing to instruct the jury that defendant could not be guilty of receiving stolen property unless he intended permanently to deprive the victim of the property when he took it. Defendant also claims the trial court abused its discretion in allowing evidence impeaching the victim, which included unsubstantiated accusations defendant had committed uncharged offenses, and in allowing testimony about the circle of violence.
We conclude there was no prejudicial error or any constitutional due process violation, and affirm the judgment.
In December 2005, defendant and Tracy Ulloa, as lessees, jointly signed an apartment lease. The one-year lease term commenced on January 1, 2006, and converted to a month-to-month lease upon expiration of the initial one-year term. The lease was in full force and effect at the time of the charged crimes on February 2, 2007.
In June 2006, defendant and Tracy married and were still married at the time of defendant's trial in May 2008. Tracy acknowledged at trial that she and defendant had been separated two or three times prior to the trial and, at the time of the trial, they had been separated for a few months. When defendant and Tracy separated, defendant moved out as soon as he found somewhere else to live. While they were living in their jointly leased apartment (the apartment), they separated several times, "sometimes for a week, two weeks, a day." Tracy described defendant and her as "a breakup to makeup couple."
On February 2, 2007, at 5:00 a.m., Tracy called 911 and requested a police officer come out to her apartment because her husband was "kicking down the door and trying to get in my apartment." When the 911 operator asked Tracy if she and her husband were separated, Tracy said, "yes." Tracy again told the operator that defendant was kicking down her front door. When the operator asked if defendant was living with Tracy, Tracy said, "no."
Police Officer Quinn testified that at 5:00 a.m., he responded to Tracy's 911 call. Upon arriving at the apartment, he noticed the front door was so badly damaged he could see through it. He saw Tracy sitting on a couch crying. She appeared upset and frightened.
Tracy told Quinn that at 5:00 a.m. she was awakened by a knock. She did not answer because she thought it was defendant. She had received numerous phone calls throughout the night from him. After the initial knock, defendant began calling for her from outside the apartment. At one point while defendant was outside, Tracy went to check on her two young children who were asleep in the back room of the apartment.
Tracy said the knocking got louder and more forceful as defendant beat on the door. Eventually defendant broke into the apartment by breaking the door off the doorframe. Upon entering the apartment, defendant took Tracy's wallet out of her purse, which was in the living room, and withdrew $900. Tracy testified the money was hers and she was going to use it to pay the rent.
After taking Tracy's money, defendant began punching holes in the bathroom door. This caused the door to swing open and the mirror fell off the door and broke.
Tracy told Quinn this was not the first time she and defendant had had arguments that had escalated to this level.
Quinn testified that Tracy told him she was married to defendant but they had not been living together. She said they had been separated for four months and were going through a divorce. Defendant had not lived at the apartment for four months. Tracy told Quinn defendant did not have any of his personal property in the apartment.
Police Detective Dodson testified that on February 27, 2007, a few weeks after the incident, he spoke to Tracy on the phone. She told him defendant had been constantly calling her the night before he broke her door down and took her money. She said defendant's mother, Elizabeth, gave her back her wallet, with all her money in it.
Dodson testified he also spoke on the phone to Elizabeth about the incident. She was aware that defendant had taken cash from Tracy's wallet. Elizabeth told Dodson she had told defendant to return the property. Defendant gave Elizabeth Tracy's wallet and the cash and Elizabeth returned it to Tracy.
At trial, Tracy and Elizabeth recanted most of what they had told the officers. Tracy denied she and defendant were separated at the time of the incident. She claimed defendant was living with her and was out with friends that night. When he returned in the early morning on February 2, 2007, Tracy and defendant got into an argument. She tried to prevent defendant from entering the apartment with his keys but eventually she let him in and began arguing. Defendant eventually left and Tracy called the police because she wanted someone to mediate their dispute.
Tracy further testified that defendant had personal belongings at the apartment on February 2, 2007, although she might have told an officer defendant had no personal belongings at the apartment. Tracy said she was not afraid of defendant and never had been.
Tracy testified that most of what she told Quinn and Dodson was either false or exaggerated. Defendant did not cause all of the damage to the doors and did not take her purse. Someone else broke into the apartment in 2006 and damaged the front door. Tracy and her children caused additional damage to the front door and to the bathroom door when they threw a shoe at the bathroom door, a computer fell over and struck the door, and Tracy's daughter struck the door with a toy. As to Tracy's missing purse, she claimed she misplaced it and later found it in her car. Tracy denied that defendant had taken anything of hers.
Defendant's mother, Elizabeth Ulloa, testified she never told defendant to return Tracy's wallet and money. Elizabeth also denied returning them to Tracy. Defendant never gave them to her. Elizabeth also denied she told Dodson defendant was living alone at the time of the incident or that defendant had caused damage to the apartment. Elizabeth testified that Tracy called her and told her to lie and tell the investigator defendant had given Elizabeth the money, and Elizabeth gave it back to Tracy. Elizabeth lied to the investigator because Elizabeth panicked when the investigator called right after Tracy.
Defendant contends the trial court should have granted his Penal Code section 1118.1 motion for judgment of acquittal on the ground the apartment lease was a complete defense to burglary. At the time of the charged burglary offense, there was in effect, an apartment lease signed by both defendant and Tracy as joint tenants. At the expiration of the one-year lease term in January 2007, the lease had converted from a one- year lease to a month-to-month lease.
Even assuming defendant had a possessory interest in the apartment under the lease at the time of the charged crimes, this was not a complete defense to the burglary charge because there was substantial evidence he had moved out of the apartment prior to the crimes and therefore no longer had an unconditional possessory interest in the apartment unit.
Under section 459, a burglary is committed when a person "enters any house, room, apartment, tenement... or other building,... with intent to commit grand or petit larceny or any felony...." (§ 459.)
In the instant case, defendant's burglary conviction was founded on evidence defendant broke into the apartment and took Tracy's purse and $900 from her wallet. Citing People v. Gauze (1975) 15 Cal.3d 709 (Gauze), defendant argues he did not commit burglary because he was a cotenant on a valid lease to the apartment and thus he could not burglarize his own home. (Id. at pp. 714, 717.) But Gauze is distinguishable. In Gauze, the defendant shared an apartment with two other roommates. The defendant and one of his roommates got into an argument and defendant left the apartment to get a gun. Defendant then returned to the apartment, walked in, and shot the roommate. The defendant's burglary conviction was predicated on the defendant's entry into his own residence with the intent to assault his roommate.
In reversing the burglary conviction, the Gauze court explained that a burglary conviction under section 459 requires "an entry which invades a possessory right in a building" (Gauze, supra, 15 Cal.3d at p. 714) and it "must be committed by a person who has no right to be in the building." (Ibid.; see also People v. Smith (2006) 142 Cal.App.4th 923, 930 [4th Dist., 2d Div.] (Smith) and People v. Gill (2008) 159 Cal.App.4th 149, 159 (Gill).) The defendant in Gauze had a possessory right of habitation and his right to enter was absolute. (Gauze, supra, at p. 714.) The Gauze court distinguished People v. Sears (1965) 62 Cal.2d 737, 746 (Sears I), in which the husband and wife had separated and the husband was staying in a hotel. The wife was living in a home, which she owned as separate property. (Ibid.; People v. Sears (1970) 2 Cal.3d 180, 182-184 (Sears II).) In Sears I, three weeks after separating and moving out, the defendant entered the wife's home through an unlocked door, with a concealed steel pipe. While looking for his wife, the defendant encountered the wife's daughter and killed her. (Ibid.)
In Sears I, the court reversed the burglary conviction based on instructional error but also rejected the defendant's contention that he could not be convicted of burglary because he had a right to enter the house. The Sears I court explained: "One who enters a room or building with the intent to commit a felony is guilty of burglary even though permission to enter has been extended to him personally or as a member of the public. [Citation.] The entry need not constitute a trespass. [Citations.] Moreover, since defendant had moved out of the family home three weeks prior to the crime, he could claim no right to enter the residence of another without permission. Even if we assume that defendant could properly enter the house for a lawful purpose (cf. Civ. Code, § 157), such an entry still constitutes burglary if accomplished with the intent to commit a felonious assault within it." (Sears I, supra, 62 Cal.2d at p. 746.)
The Gauze court concluded Sears I was not dispositive because in Sears I the defendant had no right to enter the wife's house and, even if he had a right to enter, it was conditional: "An entry for anything but a legal purpose was a breach of his wife's possessory rights, in marked contrast to the entry in [Gauze]." (Gauze, supra, 15 Cal.3d at p. 715; see also People v. Davenport (1990) 219 Cal.App.3d 885, 891-892 (Davenport).) Unlike in the instant case, the Gauze defendant had an unconditional possessory interest in the apartment unit. Here, even assuming defendant had a possessory interest under the lease, he did not have an unconditional possessory interest in the apartment unit at the time of the incident because he had separated from his wife and moved out.
As in the instant case, in Davenport, the defendant was convicted of receiving stolen property and first degree burglary for entering his estranged wife's home, which was a cabin owned by her parents. The Davenport court noted that "To sustain a burglary conviction, the People must prove that a defendant does not have an unconditional possessory right to enter his or her family residence." (Davenport, supra, 219 Cal.App.3d at p. 892.)
The Davenport court upheld the burglary conviction, concluding there was substantial evidence that appellant did not have the right to enter the cabin or, alternatively, that any such right was conditional based on the following circumstances: The defendant and his wife had been separated for months prior to the burglary; the wife continued to live at the cabin and the defendant lived elsewhere; the defendant had relinquished his keys to the cabin and had already removed some of his personal property; the wife had instructed him not to take his remaining personal property unless she was present; though no dissolution or legal separation proceeding had been filed when the burglary occurred, serious ...