California Court of Appeal, Fourth District, Second Division
[168 Cal.Rptr.3d 306] APPEAL from the Superior Court
of San Bernardino County. William Jefferson Powell IV, Judge. Affirmed.
(Super. Ct. No. FSB1205275).
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Parag Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Robert Harris guilty of first degree burglary (Pen.Code, §§ 459, 460 subd. (a); Count 1)  with the enhancement that a person other than an accomplice was present in the residence (§ 667.5, subd. (c)(21)). The special allegation rendered the burglary a violent felony. The trial court sentenced defendant to the middle term of four years in state prison.
Defendant concedes first degree burglary but contends that no other person was present because the unoccupied guest area he entered does not provide access to the occupied main residence. Finding the argument unpersuasive, we affirm.
FACTUAL AND PROCEDURAL HISTORY
The victim was awakened shortly before midnight by the familiar creaking sound of his screen door being opened. The victim's wife, who was lying awake, also recognized and reacted to the sound. The victims had their bedroom window open to get a breeze and could easily hear the door, which was about three feet away. Their bed was oriented such that their heads were under the window; they could see the intruder from their bed.
The screen door led to a converted garage used by the victims as a guestroom, containing " a bed, couch, and washroom." The victim saw the intruder standing approximately two feet into the room, but scared him away by telling his wife, " Hand me the gun." The victim's wife then went to the kitchen to call 911. After the police arrived, defendant was located in bushes near the victims' residence; he was arrested. At trial, defendant disputed the reliability of his identification by the victim as the intruder.
Defendant contends the evidence presented at trial was insufficient to support the jury's finding he committed first degree burglary with a person present. After the conclusion of the People's case, defendant moved to dismiss the special allegation, arguing there was no evidence the guesthouse itself was occupied and no evidence the main house could be accessed from the guesthouse. The trial court denied the motion.
Defendant presents the question as a lack of substantial evidence; however, his argument is that the undisputed evidence is insufficient as a matter of law to support the enhancement pursuant to section 667.5, subdivision (c)(21). The legal [168 Cal.Rptr.3d 307] sufficiency of undisputed evidence to support a conviction is a question of law, which we review de novo. ( People v. Villalobos (2006) 145 Cal.App.4th 310, 315, fn. 3, 51 Cal.Rptr.3d 678; People v. Groat (1993) 19 Cal.App.4th 1228, 1231, 24 Cal.Rptr.2d 15.) The fact the victims were present in their bedroom is not disputed, and neither is the sufficiency of the evidence supporting the burglary conviction. Only the legal issue of whether the victims' presence satisfied the burglary special circumstance is contested.
The record refers to the burglarized room in a variety of ways. The victim's testimony described the room as a " part of [his] house," and a room " for people to stay," " a guest room." He also referred to it as " not just part of the house," " [b]ecause ... you cannot go through the house into that room from indoors." The victim's wife referred to it as both a " guest house" and a " guest room." During her 911 call, the victim's wife stated the intruder entered " the side door that would lead to the house," and " the garage that's ... in the house is a guest room. That's normally where my husband and I stay." Although matters such as habitability are viewed through the eyes of the persons with a possessory right to the dwelling ( People v. Aguilar (2010) 181 Cal.App.4th 966, ...