California Court of Appeals, Third District, Yolo
CERTIFIED FOR PARTIAL PUBLICATION [*]
APPEAL from a judgment of the Superior Court of Yolo County No. CRF113631, David Rosenberg, J.
Julia Freis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, deputy attorneys general, for Plaintiff and Respondent.
RAYE, P. J.
A jury convicted defendant Penny Lynn Burkett of first degree burglary (Pen. Code, § 459—count 1) and vandalism (§ 594, subd. (b)(1)—count 2). Another count charging defendant with possession of burglary tools, a misdemeanor (§ 466—count 3), was dismissed prior to trial. The court imposed the midterm of four years for burglary, stayed sentence on a two-year midterm for vandalism, suspended execution of sentence, and granted probation.
Defendant appeals, contending the jury’s special finding that the burglarized dwelling was inhabited is not supported by sufficient evidence. We agree and will reduce the offense to second degree burglary. We will vacate the sentence and remand for resentencing.
Our conclusion regarding the insufficiency of the evidence that the residence was inhabited renders moot defendant’s additional contention that the trial court erred in denying her motion for acquittal challenging the degree of the offense.
Defendant finally claims the prosecutor committed prejudicial misconduct in his opening statement and closing arguments. As to defendant’s claim that the prosecutor misstated the law and facts related to whether the dwelling was inhabited, our disposition of defendant’s claim regarding the evidence on habitation renders the claim moot. We reject defendant’s additional claim that the prosecutor committed misconduct in arguing facts not in evidence, facts linking defendant to the crime. The argument was not improper.
From 2008 to April 2011 Barbara Mattos rented a home located on Michigan Avenue in West Sacramento. Her landlord was Mersa Noor. In March or April 2011 Noor gave Mattos a one-month notice to vacate with the idea she would be out of the home by May 3 or 4. Noor lived with his family on Carmel Bay Road in West Sacramento but was losing his home to foreclosure and needed to move into the Michigan Avenue home. He did not have an exact date by which he had to move out of his Carmel Bay Road home.
Mattos removed all her belongings from the Michigan Avenue home before April 30, 2011. Beginning April 28 and finishing late April 30, Mattos painted and cleaned the home with the help of several people. Mattos last viewed the inside of the home when she removed a vacuum or shampooer on May 1. There was nothing left inside the home. Mattos turned off all the utilities effective May 1. She had all the keys to the residence and attempted to contact Noor to return the keys to him, but she had been unsuccessful. Mattos called Noor about the burglary and returned the keys after that.
Noor testified that he did not have any keys to the Michigan Avenue residence. Noor never testified that he turned the utilities back on. He planned to move his family into the Michigan Avenue residence sometime after May 4. He had not moved anything into the home. Although he stayed a few nights after the May 2 burglary and used just a blanket, he did not move into the Michigan Avenue home until May 8 or 9.
About 2:00 p.m. on May 2, 2011, Jason Davis and Regena Langhorst, relatives of Mattos, drove by the Michigan Avenue residence on the way to Mattos’s new home, located nearby. As they passed the residence, they observed defendant and Nicholas Cummings emerge from the backyard through a gate and walk along the driveway toward the street. Davis stopped the car, and they got out and confronted the pair. Cummings, who had a backpack, introduced himself as “Mike.” Defendant and Cummings stated that they were there to see “Jamie.”
Davis and Langhorst knew Jamie Pokrywka dated Mattos’s nephew George Hansborrow. Pokrywka and Hansborrow had often stayed with Mattos when she lived in the Michigan Avenue residence. Pokrywka had helped clean and paint. Langhorst was aware of a serious fight between Pokrywka and Hansborrow and that Pokrywka had been arrested.
Langhorst told defendant and Cummings that “Jamie” was probably with “George, ” but the pair did not know “George” and stated that they were going to look for “Jamie” at her brother’s place on Pecan Street. Davis knew that Pokrywka had a brother but he did not live on Pecan Street. Cummings claimed “Jamie” had another brother. Davis and Langhorst drove away only to be flagged down by defendant and Cummings, who wanted a ride. Davis and Langhorst refused.
About 10 to 30 minutes later, Davis and Langhorst returned to the Michigan Avenue residence and discovered that it had been broken into through a kicked-in door. Finding an assortment of tools on the floor and pipes and other things amiss, they called the police. A furnace had been pulled out and sheetrock had been pulled off the garage wall. Shower handles, pipes under the bathroom sink, and a towel rack were missing. The total damage was greater than $400.
The police located defendant and Cummings within an hour and not far from the Michigan Avenue residence. Cummings had wrenches, gloves, and other tools in his backpack. He also had a small envelope with snippets of copper-colored wire. Cummings first said he and defendant rang the doorbell looking for defendant’s friend “Jamie.” Cummings gave the officers other stories but finally admitted entering the residence; he claimed he did not plan to steal anything. Cummings’ fingerprints were found on a pipe inside the home. Defendant’s fingerprints ...