(Super. Ct. No. CM031294)
The opinion of the court was delivered by: Hull , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant was convicted by a jury of two counts of burglary (Pen. Code, § 459), one in the first degree and one in the second. (Undesignated section references that follow are to the Penal Code.) The jury also found a non-accomplice had been present during the commission of the first degree burglary, making it a violent felony for purposes of calculating conduct credits (§§ 667.5, subd. (c)(21), 2933.1), and the trial court found defendant served a prior term in state prison (§ 667.5, subd. (b)). Defendant was sentenced to an aggregate state prison term of five years, eight months.
Defendant appeals, contending the evidence is insufficient to support the violent felony finding and the trial court provided inadequate instructions on that issue. Defendant further contends the court miscalculated his conduct credits. We correct the award of credits and affirm the judgment.
During the early evening hours of May 27, 2009, K.S. returned to his parent's home on Forbestown Road in Butte County and saw defendant standing in front of a shed near the back of the property. The shed door was open and K.S. could see items stacked on a freezer in front of the shed. When K.S. left the property earlier that day, the items on the freezer had been inside the shed and the shed door was closed and locked.
K.S. approached defendant and asked what he was doing there. Defendant was holding a Navy medallion that had been inside the shed. He said his mother or grandmother owned the property and, therefore, everything on the property belonged to him. K.S. told defendant to put everything down and get off the property.
Just as defendant was departing, K.S.'s parents arrived and K.S. told his mother, S.S., what had occurred. S.S. walked out to the road looking for defendant, and defendant walked up to her. Defendant told S.S. he had paperwork showing his right to the property. S.S asked defendant to produce it, but defendant said he did not have it with him. S.S. asked defendant to leave. Defendant stood there for a while but eventually departed.
After defendant left, S.S. and K.S. searched the shed and saw that several boxes inside had been opened and searched. The lock to the shed door appeared to have been hit with a hammer.
Meanwhile, at another home on Forbestown Road approximately 350 to 400 meters from the home of S.S., C.B. and her family ate dinner and went to a church revival. They returned home around 8:45 or 9:00 p.m. and saw that all the lights in the house were on.
C.B. entered the house after her children and walked through the kitchen and around a corner into a hallway, where she encountered defendant emerging from the master bedroom. Defendant asked C.B. what she was doing there. C.B. responded that she lived there and asked defendant what he was doing there. Defendant told C.B. she was mistaken and that this was his sister's house.
At that point, C.B.'s husband, N.B., came into the hallway and he and defendant walked into the living room to discuss the matter further. N.B. asked defendant the location of his sister's house, and defendant said it was a big redwood house on the hill. N.B. did not know of any such house in the neighborhood. Although defendant identified himself to N.B., his identity seemed to change more than once as time went on. N.B. asked the name of defendant's sister, and he said it was Sonia. Later, defendant said his sister was Sonia Sotomayor or something like that. Defendant had a satchel of some sort and offered to allow N.B. to look through it. N.B. declined. N.B. eventually called 9-1-1 to summon the police.
While N.B. was questioning defendant, C.B. went into her bedroom and noticed items out of place. There were clothes piled on the bed and a digital camera lying in a crib that had not been in the crib when the family left for the revival. Doors and drawers of furniture were open that had been closed and a leather jacket that had been in a closet was on a ...