California Court of Appeal, Fourth District, First Division
APPEAL from a judgment of the Superior Court of San Diego County, Harry Mark Elias, Judge. Affirmed as modified. (Super. Ct. No. SCN299533).
[168 Cal.Rptr.3d 30] Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
BENKE, Acting P.J.
Jeanette Sonja Tessman appeals the order granting her five years of formal probation after the trial court conducted a bench trial and found her guilty of one count of residential burglary (Pen. Code, §§ 459 & 460, subd. (a))  and one count of commercial burglary (§ 459). Tessman contends the residential burglary conviction must be reversed because the building she entered was not an inhabited dwelling house at the time of the entry, and the commercial burglary conviction must be reversed because
the conviction might have rested on a legally incorrect theory of guilt. We reject Tessman's substantive contentions. Accordingly, we affirm as modified.
A. The Residential Burglary
On February 6, 2011, real estate agent Janet Taylor held an open house at a residence owned by Jennifer Johns in [168 Cal.Rptr.3d 31] Carlsbad. Johns had all her belongings in the house and slept there the nights before and after the open house. During the open house, Johns was not at home.
Tessman went to the open house and chatted with Taylor for a few minutes. Tessman then removed her shoes, walked into the kitchen, looked it over for 15 to 20 seconds, and asked Taylor if she could go upstairs. Taylor gave permission, and Tessman walked up the stairs.
After Tessman went upstairs, Taylor developed a feeling that something was wrong. Taylor ran up the stairs and heard a noise that sounded like metal pieces clinking together. She saw Tessman in the master bathroom standing over a jewelry box with her hand on something. Taylor asked, " What are you doing?" Tessman replied, " Oh, I just like to look at things" ; she then shrugged and smiled. Taylor told Tessman she needed to leave and escorted her out of the house.
After Tessman had departed, Taylor telephoned Johns to report that Tessman had gone through some things in the master bathroom. When Johns returned home after the open house, she discovered some rings and a necklace were missing from her jewelry box.
B. The Commercial Burglary
Vihra Marinova held open houses at her home in Carlsbad in January and February 2011. During that time period, five gold necklaces were taken from her jewelry box. Marinova reported to police that the items had been stolen and provided descriptions and drawings of the items.
On January 30, 2011, Tessman entered a pawn shop and sold three necklaces. The shop forwarded information about its purchases from Tessman to the local police department.
After receiving information about the necklaces Tessman had sold to the pawn shop, police contacted Marinova and urged her to go to the pawn shop because one of the necklaces appeared very similar to a necklace Marinova had reported stolen. Marinova went to the shop, identified the necklace as hers, and purchased it.
Police subsequently contacted Tessman as part of an investigation into jewelry thefts in Carlsbad. Tessman admitted she had attended open houses in Carlsbad and had looked through jewelry boxes in the homes she visited, but she denied ever taking anything. Tessman also admitted she had pawned some pieces of jewelry, but claimed a former employer had given the jewelry to her between 1998 and 2002.
Tessman challenges both of her burglary convictions. She argues the residential burglary conviction must be reversed because at the time she entered Johns's house, it was not an " inhabited dwelling." (§ 460, subd. (a).) Tessman contends the commercial burglary conviction must be reversed because the trial court might have found her guilty on the basis of a legally ...