(Super. Ct. No. 72006157)
The opinion of the court was delivered by: Mauro , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Among other offenses, defendant Cody Edward Pohl was convicted of second degree burglary (count one) for theft of a guitar from his stepdaughter's bedroom, and first degree burglary (count two) for theft of a television from a vacation home. The trial court found he had a prior strike conviction and a prior serious felony conviction. Defendant was originally sentenced to 13 years 4 months in prison, but the trial court subsequently recalled the sentence and resentenced defendant to 14 years 4 months in prison.
On appeal, defendant contends (1) his second degree burglary conviction for theft of the guitar from his stepdaughter's bedroom must be reversed because defendant cannot be convicted of burglarizing his own home; (2) there was insufficient evidence to support his first degree burglary conviction for theft of the television from the vacation home, because the prosecution did not establish that the vacation home was inhabited at the time of the theft; (3) consequently, the enhancement pursuant to Penal Code section 667, subdivision (a)*fn1 must be stricken because his first degree burglary conviction on count two must be reduced to second degree burglary, which is not a serious felony; and (4) when the trial court recalled defendant's sentence and resentenced him, it improperly increased his sentence in violation of section 1170, subdivision (d).
We conclude that defendant's first, second and third contentions have merit. We will reverse in part and remand for resentencing. Accordingly, it is not necessary to address his fourth contention.
Because this appeal focuses only on defendant's burglary convictions, we limit our discussion to the relevant background.
Defendant married Mirlaine Bennett in 2002 and moved into the four-bedroom condominium in Lake Tahoe that Bennett was leasing at the time. Defendant resided there with his wife for seven years.
At some point during the marriage, defendant began spending weeks away from home. In 2009, Bennett's adult daughter Meline was living at home and not paying rent. Meline did not stay at the residence when defendant was there, however, because she did not like him. Meline testified that she would "prohibit" defendant from entering her room. There was no lock on the outside of the door to Meline's room, but sometimes she locked the door from the inside, sometimes the door was closed but unlocked, and sometimes it was open.
Meline's biological father had given her a guitar that she kept in a case behind her closet door. Meline noticed in March 2009 that the guitar was missing from its case. The guitar was eventually recovered from a pawnshop. According to the pawn slip, defendant pawned the guitar on March 5, 2009. Defendant did not deny pawning the guitar but claimed it belonged to him. Bennett filed for divorce and obtained a restraining order prohibiting defendant from entering the home.
In June 2009, Bennett began cleaning two vacation homes, designated unit B (lakeside unit) and unit C (roadside unit), as part of her cleaning business. Bryon Topol owned both vacation rentals. His family sometimes stayed in the lakeside unit, but nobody from his family ever stayed in the roadside unit.
Bennett told defendant about the new cleaning account. She testified that, on one occasion, she entered the roadside unit to clean it and ...