APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. (Super. Ct. Nos. 10CM1221 & 10CM1922)
The opinion of the court was delivered by: Wiseman, Acting P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In connection with two separate incidents, defendant Pablo Mendoza Chavez was convicted of burglary, receipt of stolen property, conspiracy to commit burglary, theft with a prior theft conviction, and possession of burglary tools. The conviction of conspiracy to commit burglary was based on the entry of a coconspirator into a fenced wrecking yard to steal gasoline from a junk car.
Burglary requires entry into a building, but the jury was instructed that entry into the yard was sufficient. Although our Supreme Court has defined "building" broadly for purposes of burglary, it has still generally limited the meaning of "building" to a structure with walls and a roof. We know of no California case that has gone so far as to hold that a fenced yard surrounding a building is itself a building or part of a building, and case law from other states in which a burglar must enter a "building" in the ordinary sense, without a special statutory definition, rejects the view that a fenced yard can be burglarized. The plain meaning of the word "building" also does not include a fenced yard. Therefore, in the published portion of this opinion, we reverse the conviction of conspiracy to commit burglary. This will reduce Chavez's sentence to nine years from nine years eight months.
Chavez's sentence included prior-prison-term enhancements pursuant to Penal Code section 667.5, subdivision (b).*fn2 The court stayed some of these enhancements pursuant to section 654. Chavez contends, and the People concede, that it was error to stay these enhancements, because case law holds that section 667.5, subdivision (b), enhancements must be either imposed or stricken. We remand to allow the court to exercise its discretion either to strike or to impose the enhancements.
Chavez also argues that his trial counsel provided ineffective assistance in violation of the Sixth Amendment for several reasons. We reject these contentions.
FACTUAL AND PROCEDURAL HISTORIES
Early in the morning of May 1, 2010, Lemoore police officers saw a pickup truck parked across the street from Economy Auto Wrecking, an auto salvage yard. They saw a man run from the entrance of the yard to the truck. Then they saw another man jump over the yard's fence from the inside and go to the truck. The officers approached and found Chavez in the driver's seat and Jeremiah Phillips in the passenger seat. Phillips was the one who had been seen jumping over the fence from the inside.
Near the front entrance of the wrecking yard, outside the fence, the officers found three cans filled with gasoline and a siphoning hose. They arrested the two men and contacted the owner of the wrecking yard, who said Chavez and Phillips did not have permission to be on the property. The officers searched the truck and found bolt cutters, tin snips, wire cutters, drills, flashlights, pliers, gloves, and an empty gasoline can. They also searched the men. Chavez had pliers, wrenches, and screwdrivers in his pockets. Phillips admitted to the officers that he and Chavez agreed to go to the yard to steal gasoline from a car there. Chavez apologized to the officers and said he was being stupid and needed the gasoline to get home. Later, Phillips testified that Chavez took the full cans when Phillips passed them over the fence, but Chavez did not agree to steal; the stealing was Phillips's idea alone and he had lied to Chavez to gain his cooperation, telling him a friend was a guard there and he had permission.
The wrecking yard consisted of a fenced area with a building inside. Some of the fence was chainlink and some solid.*fn3
On July 6, 2010, while Chavez was out on bail for the May 1 arrest, a motorcycle was stolen from the garage of Russell Brookshier near Hanford. Douglas Haddon, Chavez's friend, was arrested after burglarizing another home the following morning, and he implicated himself and Chavez in the theft of the motorcycle and also in the theft of a pickup truck. Police went to Chavez's apartment building the next day and found the missing motorcycle on the property, partially covered by a tarp. Chavez denied involvement in the theft, but said his fingerprints would be on the motorcycle because he had moved it so he could get through a gate. A barrel and a crate that had been in the stolen pickup truck were found near the motorcycle.
For the May 1, 2010, crimes at the wrecking yard, the district attorney filed an information in case No. 10CM1221. Count 1 charged a conspiracy to commit second degree burglary. (§§ 182, subd. (a)(1), 459.) Count 2 charged theft with prior theft convictions. (§ 666.) Count 3 charged misdemeanor possession of burglary tools. Three prior convictions were alleged to support the theft-with-priors charge. Two of these prior convictions were also alleged for purposes of sentence enhancement on counts 1 and 2 pursuant to section 667.5, subdivision (b).
For the July 6, 2010, crimes involving the motorcycle, the district attorney filed an information in case No. 10CM1922. Count 1 was burglary of the home of the owner of the motorcycle. (§ 459.) Count 2 was unlawful taking of the motorcycle (Veh. Code, § 10851, subd. (a)), but this count was stricken at the prosecutor's request during trial. Count 3 was receiving the stolen motorcycle. (§ 496d.) Two prior offenses were again alleged for purposes of sentence enhancement pursuant to section 667.5, subdivision (b). The information also alleged that Chavez was released on bail in the other case when he committed these offenses. The two cases were consolidated for trial.
The jury found Chavez guilty of all counts, found there was a person present during the residential burglary, and found the on-bail enhancement true.*fn4 Chavez admitted all the prior offenses.
At the sentencing hearing, the court deemed case No. 10CM1922 the principal case. For the burglary, it imposed the upper term of six years, plus one year for the section 667.5, subdivision (b), enhancement. It also imposed a two-year term for the on-bail enhancement. For receiving the stolen motorcycle, the court imposed the upper term of three years, plus one year for the section 667.5, subdivision (b), enhancement, all stayed pursuant to section 654. In case No. 10CM1221, the court imposed a term of eight months, equal to one-third of the middle term, for conspiracy to commit burglary. For theft with prior thefts, the court also imposed a term of eight months, equal to one-third of the middle term, and stayed it pursuant to section 654. For possession of burglary tools, the court imposed 180 days, to ...