People v. Singleton

run away,” Velasquez removed the battery from defendant’s car and walked upstairs to the third floor. He passed through the locked gate, stood at the top of the stairs in the hallway leading to the apartment, and waited around the comer for nearly half an hour, watching the door to his apartment. When defendant exited the apartment, he was carrying a duffel bag. Defendant walked past Velasquez to reach the stairs. As defendant passed, Velasquez asked about the duffel bag’s contents. Defendant explained the bag contained dirty laundry and kept walking. Defendant tried to drive away, but when he discovered his car no longer had a battery, he placed the duffel bag in an alleyway behind the apartment building and fled on foot. Velasquez found the duffel bag and discovered it contained Velasquez’s DVD player, clothes iron, and car stereo.

DISCUSSION

Defendant argues the trial court erred in answering the jury’s questions pertaining to the “occupied burglary” allegation and the evidence is insufficient to support the jury’s finding that the allegation was true. We need not decide whether the trial court’s response to the jury was prejudicial error, because there is insufficient evidence to support the finding that another person was present in the residence at the time of the burglary.

During its deliberations, the jury asked the trial court three questions: (1) what is the definition of a residence; (2) is there is a distinction between a residence and a dwelling; and (3) “is inside the locked gate considered ‘present in the residence.’ ” In response, the trial court pointed the jury to CALJIC No. 14.50, which defines a “building” as a “structure” for purposes of the entry element of burglary, responded that “a residence is a dwelling,” and answered “it is for you to decide whether inside the locked gate is considered ‘present in the residence.’ ” Defendant objected to the trial court’s third answer.

Defendant’s contentions require us to determine the meaning of “present in the residence” for purposes of the violent felony finding under section 667.5, subdivision (c)(21). Enacted as part of Proposition 21 in 2000, section 667.5, subdivision (c)(21) elevates a first degree burglary (§ 460) to the status of a violent felony if a person other than an accomplice is “present in the residence” during the burglary. (Doe v. Saenz (2006) 140 Cal.App.4th 960 , 974 [ 45 Cal.Rptr.3d 126 ].) A defendant convicted of a violent felony is limited as to the amount of presentence and postsentence custody credits that

can be earned. (See People v. Garcia (2004) 121 Cal.App.4th 271 , 274 [ 16 Cal.Rptr.3d 833 ] (Garcia) [discussing presentence custody credits].) Thus, a defendant convicted of a serious felony, such as first degree burglary of an inhabited dwelling house, can earn good time/work time credits to reduce his or her sentence up to 50 percent (§ 4019; People v. Heard (1993) 18 Cal.App.4th 1025 , 1029 [ 22 Cal.Rptr.2d 684 ]), but a defendant convicted of a violent felony can earn a maximum of 15 percent in custody credits, thereby ensuring that he or she serves at least 85 percent of the sentence imposed. (§ 2933.1, subd. (b); Garcia, supra, 121 Cal.App.4th at p. 274.) Based upon the jury’s finding on the special allegation in this case, defendant is limited to earning presentence and postsentence conduct credits of no more than 15 percent of his eight-year sentence.

The parties agree that Velasquez was not physically inside the apartment unit at the time it was burglarized. They agree he was outside the apartment itself, down the hall, around the corner, yet within the locked gate restricting access to the third story of the building. The question in this case turns on whether Velasquez was nevertheless “present in the residence” as he stood in the outside hallway for purposes of section 667.5, subdivision (c)(21). We review the statutory interpretation issue de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415 , 432 [ 101 Cal.Rptr.2d 200 , 11 P.3d 956 ].)

The canons of statutory interpretation are well settled. (Burden v. Snowden (1992) 2 Cal.4th 556 , 562 [ 7 Cal.Rptr.2d 531 , 828 P.2d 672 ].) “Our role in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citation.] Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning. [Citation.] We do not, however, consider the statutory language in isolation, but rather examine the entire substance of the statute in order to determine the scope and purpose of the provision, construing its words in context and harmonizing its various parts. [Citation.]” (Alford v. Superior Court (2003) 29 Cal.4th 1033 , 1040 [ 130 Cal.Rptr.2d 672 , 63 P.3d 228 ].) “Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.” (Burden v. Snowden, supra, 2 Cal.4th at p. 562.)

Section 667.5, subdivision (c)(21) is plain on its face, and it requires a person, other than an accomplice, be “present in the residence during the commission of the burglary.” (Italics added.) The plain meaning of “present in the residence” is that a person, other than the burglar or an accomplice, has crossed the threshold or otherwise passed within the outer walls of the house, apartment, or other dwelling place being burglarized. “The threshold line of

the building is located at the doorways into the apartments. One who stands on the stairway would not be considered ‘inside’ the building under ordinary parlance.” (People v. Wise (1994) 25 Cal.App.4th 339 , 345 [ 30 Cal.Rptr.2d 413 ].) Certainly, it would not comport with the ordinary and plain usage to consider someone standing outside, around the comer, and down the hall from an apartment to be present in that apartment.

“[W]e are required to ascribe significance to every word of each statute we are called upon to apply.” (People v. Jones (1988) 46 Cal.3d 585 , 596 [ 250 Cal.Rptr. 635 , 758 P.2d 1165 ].) Each word of a statute is assumed to have been chosen carefully to impart its own meaning. (See Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050 , 1056 [ 22 Cal.Rptr.2d 287 , 856 P.2d 1143 ].) We therefore assume the drafters chose the language “present in”—rather than “near” or “around,” or “in the vicinity”—to impart its common meaning. (Cf. § 212.5, subd. (b) [defining robbery of the first degree as including a robbery after a person has used an automatic teller machine and the person “is in the vicinity of the automated teller machine”].) As such, the nonaccomplice cannot merely be near, at, or around the residence, but must be in the residence for the purposes of the statute.

Moreover, we note the Proposition 21 drafters chose the term “residence,” not “inhabited dwelling,” for purposes of the violent felony allegation. The latter term defines the predicate crime of first degree burglary. When a statute uses different, albeit similar, words to those in related statutes, there is a compelling inference that different meanings were intended. (See, e.g., People v. Jones, supra, 46 Cal.3d at p. 596.) Although a residence may be an inhabited dwelling, the latter term has acquired specialized meaning with reference to burglary under this state’s precedent. In keeping with the purpose of the statute in providing heightened protection to dwelling places and in recognition of the increased danger of violence when such places are burglarized, the term “inhabited dwelling house” has been given a “ ‘broad, inclusive definition.’ ” (People v. Villalobos (2006) 145 Cal.App.4th 310 , 317 [ 51 Cal.Rptr.3d 678 ], quoting People v. Cruz (1996) 13 Cal.4th 764 , 776, 779 [ 55 Cal.Rptr.2d 117 , 919 P.2d 731 ].) As a result, “a temporary place of abode, such as a weekend fishing retreat [citation], a hospital room [citation] or even a jail cell [citation], may qualify.” (People v. Villalobos, supra, 145 Cal.App.4th at p. 318.)

Section 667.5, subdivision (c)(21), neither equates “residence” with “inhabited dwelling,” nor gives a special definition to the former term. “When a statute does not define some of its terms, we generally look to ‘the common knowledge and understanding of members of the particular vocation or profession to which the statute applies’ for the meaning of those terms.” (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564 , 575

[ 273 Cal.Rptr. 584 , 797 P.2d 608 ], quoting Cranston v. City of Richmond (1985) 40 Cal.3d 755 , 765 [ 221 Cal.Rptr. 779 , 710 P.2d 845 ].) “A residence” is a term unused in other statutory references to burglary, strongly indicating the term was intended to refer to a location different than the broadly interpreted “inhabited dwelling.”

In addition, the drafters of Proposition 21 were aware of the special terminology used in our burglary statutes, since section 667.5, subdivision (c)(21) specifically refers to section 460 for purposes of defining the predicate offense. Again, the drafters had the clear opportunity to employ the specialized term “inhabited dwelling” for purposes of defining the nature of an occupied burglary for violent felony purposes, but chose the nontechnical term instead. “In the case of a voters’ initiative statute ... we may not properly interpret the measure in a way that the electorate did not contemplate: the voters should get what they enacted, not more and not less.” (Hodges v. Superior Court (1999) 21 Cal.4th 109 , 114 [ 86 Cal.Rptr.2d 884 , 980 P.2d 433 ].) In accordance with the appropriate canons of construction, we cannot ascribe to the commonplace term “residence” the broad, technical meaning given by case law to “inhabited dwelling.” It would be unreasonable to find the voters understood “present in the residence” to apply when a person was standing in the hallway, outside an apartment unit.

It is apparent from the foregoing discussion that our statutory interpretation analysis requires reversal of the occupied burglary allegation on the ground of insufficiency of the evidence. In assessing a claim of insufficiency of evidence, the reviewing court’s task is to “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557 , 578 [ 162 Cal.Rptr. 431 , 606 P.2d 738 ].) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but instead, whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307 , 317-320 [ 61 L.Ed.2d 560 , 99 S.Ct. 2781 ].)

Viewed in the light most favorable to the judgment, there was no evidence that Velasquez was present in the apartment during the burglary. A comparison with Garcia, supra, 121 Cal.App.4th 271 is helpful. There, a resident and his friend “were startled by the sound of continuous banging on the back door while they were watching television. Both men remained inside

DISPOSITION

The finding that the burglary in count 2 was a violent felony pursuant to Penal Code section 667.5, subdivision (c)(21) is reversed. In all other respects, the judgment is affirmed.

Turner, P. J., and Mosk, J., concurred.