APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. Affirmed. (Super.Ct.No. FWV802911).
The opinion of the court was delivered by: Ramirez, P. J.
CERTIFIED FOR PUBLICATION
Defendant and appellant Roberto Sanchez Aguilar appeals his jury conviction for one count of first degree burglary. (Pen. Code, § 459.)*fn1 He argues there is insufficient evidence to support his conviction for burglary in the first degree and seeks a reduction of the conviction to burglary in the second degree. Defendant also contends the trial court erroneously and prejudicially excluded defense evidence relevant to whether the burglary was of the first or second degree.
FACTUAL AND PROCEDURAL BACKGROUND
On October 24, 2008, residents of an apartment building were temporarily relocated to a hotel because of a fire in one of the units. Apartment management allowed these residents to return to their apartments with an escort to pick up personal belongings, clothing, and any valuables they wanted to take with them to the hotel. A few days after the fire, on October 28, 2008, the victim, who lived in one of the apartments damaged by the fire, returned to retrieve some additional personal belongings. The front door of the victim's apartment unit had been boarded up, so a maintenance employee removed the boarding so the victim could access the apartment. When the victim entered his apartment, he found defendant inside. Defendant was using some of the victim's personal belongings. Other items the victim kept inside his apartment had been moved in a manner suggesting defendant intended to take them from the apartment. A sliding patio door leading to the balcony was "slightly open." Defendant was arrested and charged with first degree residential burglary in violation of section 459.*fn2
After the burglary, on October 30, 2008, apartment management notified the victim in writing that he would be unable to move back into his apartment and would need to be transferred to another unit in the same apartment complex. The written notice provided by apartment management states: "The structural engineer is requiring all residents to remove all their belongings from the building by Sunday, November 2, 2008." The victim testified he did not learn he would not be able to return to the apartment to live until November 1, 2008.
The jury found defendant guilty as charged. The trial court sentenced defendant to the middle term of four years in state prison.
Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence to support his conviction for first degree burglary because he believes the prosecution did not prove the victim's apartment was "inhabited" within the meaning of section 459 at the time of the burglary. He believes the evidence shows the apartment was not "inhabited" at the time of the burglary, because it was "completely destroyed" or "badly damaged" and was "no longer usable as a residence," so the victim was not permitted to return there to live.
Defendant raised this issue for the first time in a motion to dismiss prior to trial. The trial court denied the motion because it was based on testimony from the preliminary hearing, which the trial court could not consider in ruling on a motion to dismiss. The issue was considered again in connection with a pretrial motion by the prosecutor to exclude testimony by a city building inspector indicating the city considered the damaged apartment building "uninhabitable" as of the date of the fire. Defendant opposed the motion, arguing the inspector's testimony was highly relevant to the issue of habitability. The trial court ruled the issue of habitability is determined based on the point of view of the victim, so the inspector's testimony was not relevant without "some additional foundation" that the inspector was telling the victim he could not move back into the apartment. Defendant also raised the issue in a motion for a new trial, but the trial court denied the motion stating it had not changed its opinion on the issue.
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial-that is, evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Under section 459, a person is guilty of burglary if he "enters any house, room, apartment . . . or other building . . . with intent to commit grand or petit larceny or any felony . . . ." "Every burglary of an inhabited dwelling house . . . is burglary of the first degree." (§ 460, subd. (a).) "All other kinds of burglary are of the second degree." (§ 460, subd. (b).) Section 459 ...