Opinion
C082419
08-02-2017
THE PEOPLE, Plaintiff and Respondent, v. ERIK BUNNELL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F07171)
Defendant Erik Bunnell used a metal pole to smash the glass door of a laundry room in an apartment complex that contained washing machines, dryers, and a few vending machines. After he entered the laundry room, apartment tenants could hear loud banging noises like someone was trying to break into the vending machines. He was later apprehended hiding behind a bathroom door in a friend's nearby apartment.
A jury convicted defendant of second degree burglary. (Pen. Code, § 459.) He was sentenced to serve a total of five years four months in prison for the offense and for four prior prison term allegations the court found true. (§ 667.5, subd. (b).)
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) the laundry room for the apartment complex's residents constitutes a "commercial establishment" under section 459.5 that reclassified as misdemeanor shoplifting certain offenses that previously constituted felony second degree burglary, and (2) insufficient evidence shows he intended to commit a theft while inside the laundry room. In his view, the court should reverse his second degree burglary conviction entirely for insufficient evidence, or, alternatively, reverse and remand the matter with instructions directing the trial court to impose a conviction and sentence for misdemeanor shoplifting under section 459.5. Finding no merit to any of his contentions, we shall affirm.
FACTS AND PROCEEDINGS
On November 26, 2015, Stephanie Collins and her fiancé, Richard Paris, returned to their Citrus Heights apartment after eating Thanksgiving dinner with family. The apartment complex had a laundry room for residents that contained washers and dryers and several vending machines. The door was usually open during the day, but closed at night and only accessible by residents with a key. If accidentally closed during the day, the door was locked.
After arriving at the complex, Collins took her children up to her apartment and then returned outside to walk her dog. Paris, meanwhile, made several trips from the car to the apartment to unload.
While standing with her dog on a nearby grassy area, Collins heard glass break. She looked up and saw defendant and a woman breaking the glass on the door to the apartment complex's laundry room. It was dark outside, and the door was closed.
Collins recognized defendant, even though he did not live at the apartments, because she had seen him on several prior occasions. Defendant would often hang out in front of apartment 149 that was located near her apartment and the laundry room.
Collins saw defendant holding what looked like a metal pole. He was not carrying any laundry items such as a basket, detergent, or laundry bag. Defendant used the pole to break additional panes of glass in the door, and then reached through the broken glass and opened the door using the inside handle. He did not use a key card to open the door. He and the woman then entered the laundry room.
After they entered, Collins heard "a lot of really loud banging" from inside the laundry room. She said it sounded like metal banging really loudly on metal, and then later like metal on plexiglass. The sounds reminded her of when kids in the apartment complex would bang on the vending machines. Defendant and the woman emerged from the laundry room approximately 10 minutes later, and walked towards apartment 149.
Upon hearing the initial glass break, Paris walked to Collins and told her to go to their apartment. Paris then called police. He told the 911 emergency dispatch operator that a male and a female broke the glass on the laundry room door and were inside vandalizing the vending machines. Paris reported they went to apartment 149 after leaving the laundry room, and the man was carrying a metal pole. A recording of the 911 call was played for the jury.
At trial, Paris described hearing "a large bang" while the people were inside the laundry room. The noise sounded "like glass or like a large plastic bang, like someone was trying to break something."
When law enforcement officers arrived, they went to apartment 149. Several people were inside. An officer found defendant hiding behind a bathroom door eating something and detained him. A large metal pipe was also located outside the apartment.
Defendant was handcuffed and seated outside apartment 149. After being read his Miranda rights, defendant admitted entering the laundry room, supposedly to help his girlfriend, but denied breaking or stealing anything. From her apartment window, Collins could see defendant sitting outside apartment 149. She told an officer with whom she was speaking on the phone that defendant was the person who broke into the laundry room.
Miranda v. Arizona (1966) 384 U.S. 436 . --------
After the break-in, 24-hour access to the laundry room was no longer permitted. The apartment complex placed a deadbolt lock on the door and stopped issuing residents keys to the laundry room.
Defendant did not testify at trial. Jason Davis, who lived in apartment 149 and was defendant's friend testified on his behalf.
According to Davis, on the night of the crime defendant had come to his apartment but he did not have anything with him. A few seconds after he let defendant into his apartment, he heard a knock on the front door.
When Davis looked through the peephole, he exclaimed that the cops were outside. Davis then opened the door and stepped outside to talk with the officers. After speaking for a minute, Davis opened the door and he and the officers walked back into the apartment. Officers detained defendant after finding him hiding in the bathroom.
A jury found defendant guilty of second degree burglary. In a subsequent bifurcated proceeding, the court found true nine prior prison term allegations. (§ 667.5, subd. (b).)
Prior to sentencing, defense counsel asked the court to reduce the burglary conviction to a misdemeanor shoplifting conviction under section 459.5. In denying counsel's request, the court found the laundry room was "not open to the public by any stretch of the imagination," distinguishing the small apartment complex laundry room with a laundromat open to the public in a strip mall. The court also found defendant broke into the laundry room "beyond the hours of where the door was open and you could only get into this if you had a key."
The court ultimately struck five prior prison term enhancements under section 1385, and sentenced defendant to serve a total of five years four months in a county jail prison commitment. (§ 1170, subd. (h)(1).) The court imposed the low term of 16 months on the burglary conviction, plus an additional consecutive four years, one year for each of the four prior prison terms. Defendant timely appealed.
DISCUSSION
I
An Apartment Complex Laundry Facility for Residents Is Not a Commercial
Establishment under Section 459 .5
Defendant contends the court erred in imposing a felony sentence for second degree burglary because his offense constitutes misdemeanor shoplifting as defined in section 459.5. In his view, the apartment complex laundry room qualifies as a "commercial establishment" within the meaning of section 459.5. We disagree.
In November 2014, voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (as approved by voters Gen. Elec., Nov. 4, 2014, eff. Nov. 5, 2014 (Proposition 47)), that reduced certain drug and theft related offenses to misdemeanors, unless the offenses were committed by ineligible defendants. (People v. Bunyard (2017) 9 Cal.App.5th 1237, 1241 (Bunyard).) Proposition 47 added section 459.5 that provides in relevant part: "Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary." (§ 459.5, subd. (a).)
"The crime of shoplifting has three elements: (1) entry into a commercial establishment, (2) while the establishment is open during regular business hours, and (3) with intent to commit larceny of property valued at $950 or less." (In re J.L. (2015) 242 Cal.App.4th 1108, 1114 (In re J.L.).) Although section 459.5 does not define the phrase "commercial establishment" (id. at p. 1113; § 459.5), other courts have recognized that "a commercial establishment is one that is primarily engaged in commerce, that is, the buying and selling of goods or services." (In re J.L. at p. 1114.)
Applying that definition, the court in In re J.L. held a theft of a cell phone from a school locker room was not a theft from a commercial establishment because a public high school was not primarily engaged in the sale of goods and services; rather, it was an establishment dedicated to educating students. (In re J.L., supra, 242 Cal.App.4th at p. 1114.) In People v. Stylz (2016) 2 Cal.App.5th 530, 533-534, the court found a specific locked storage unit--as opposed to the storage facility of which it was a part--did not constitute a "commercial establishment" within the meaning of section 459.5. No evidence suggested the unit's owner rented the storage unit to engage in commerce, or the locked unit was open to the public during regular business hours. (Id. at p. 535.)
In People v. Holm (2016) 3 Cal.App.5th 141, 147, by contrast, the court found a golf and country club qualified as a commercial establishment because it was " 'primarily engaged in the sale of goods and services.' " According to the court, the club's commercial nature was apparent from the goods and services it sold to individual club members and their guests as well as the banquet spaces and services it sold to the general public. (Id. at pp. 147-148.) A commercial laundromat described as a "business[]" "open 24 hours a day" was implicitly assumed to be a commercial establishment for purposes of section 459.5 in Bunyard, supra, 9 Cal.App.5th at p. 1244.
It is these latter two cases upon which defendant primarily relies when arguing the laundry room at issue here constitutes a "commercial establishment" within the meaning of the misdemeanor shoplifting statute. (§ 459.5.) He contends that because the laundry room had vending machines and washers and dryers it was a "commercial establishment." He also argues the facility was "open to the public" because the door was sometimes open during the day and anyone could do laundry or buy snacks during that time.
The problem with defendant's argument, however, is that there was no evidence the laundry room was intended for use by the general public like the commercial laundromat discussed in Bunyard, supra, 9 Cal.App.5th 1237. While defendant argues, "[i]t is of no matter that in Bunyard the laundromat was a commercial laundromat as opposed to a laundromat inside an apartment complex," we disagree.
Here, Collins testified the facility was for residents and required a key to enter. That the door may have been open during the day does not mean the facility was open to the public. If the door was shut during the day, it would be locked. The door was also shut at night requiring a resident's key to gain entry. Management had since put a deadbolt lock on the door and taken access keys away from residents. The apartment complex's laundry room differs significantly from a laundromat business open to the public 24 hours a day. (See Bunyard, supra, 9 Cal.App.5th at pp. 1240, 1244.)
The presence of a few vending machines in the laundry room does not mean it was an establishment "primarily engaged in the sale of goods and services." (In re J.L., supra, 242 Cal.App.4th at p. 1114, italics added.) Schools often have vending machines where students can buy sodas and snacks, and, yet, in In re J.L., supra, 242 Cal.App.4th 1108, a public high school was found not to constitute a commercial establishment because its primary purpose was the education of students. (Ibid.) Similarly, in this case, the primary purpose of the laundry room was to provide residents with a space to do their laundry--a household chore--and not the sale of goods and services to the general public.
Considering the ordinary meaning of the phrase "commercial establishment" (In re J.L., supra, 242 Cal.App.4th at p. 1114 [one that is primarily engaged in commerce]), breaking into a residential laundry room in an apartment complex with the intent to commit a larceny or other felony is not "shoplifting" within the meaning of section 459.5. Thus, the trial court properly imposed a felony sentence for defendant's second degree burglary conviction.
II
Sufficient Evidence Supports the Second Degree Burglary Conviction
Defendant contends there was insufficient evidence he intended to commit a theft inside the laundry room. We disagree with defendant's view of the evidence and conclude substantial evidence supports the second degree burglary conviction.
"The substantial evidence rule is generous to the respondent on appeal . . . ." (People v. Small (1988) 205 Cal.App.3d 319, 325.) When determining whether there is substantial evidence to support a conviction, we view the record in the light most favorable to the People, resolving all conflicts in the evidence and drawing all reasonable inferences in support of the conviction. (People v. Campbell (1994) 25 Cal.App.4th 402, 408; People v. Kraft (2000) 23 Cal.4th 978, 1053 [we presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence].) " 'We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant guilty on the theory presented.' " (Campbell, at p. 408.)
The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) "An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (Ibid.) " 'Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt.' " (People v. Farnam (2002) 28 Cal.4th 107, 143 (Farnam).) "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." (Ibid.) We do not reweigh evidence or reevaluate a witness's credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Under section 459, "[e]very person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." (§ 459.) To convict defendant of second degree burglary, then, the prosecution had to prove beyond a reasonable doubt he entered the laundry room with the intent to commit a theft or a felony. (People v. Holt (1997) 15 Cal.4th 619, 669 (Holt).)
" ' "While the existence of the specific intent charged at the time of entering a building is necessary to constitute burglary in order to sustain a conviction, this element is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence." [Citation.]' " (Holt, supra, 15 Cal.4th at p. 669.) The question here is whether the evidence, including that of defendant's conduct during and after his entry, supports a reasonable inference the larcenous intent existed at the time he entered the laundry room. We conclude it does.
Collins identified defendant, at the scene and again at trial, as the person she saw using a metal pole to smash the glass panes on the laundry room door. At the time, it was dark outside and the door was closed, which meant a key provided to residents was necessary to open the door. Defendant did not live at the apartments, nor did he use a key to open the closed laundry room. He did not have any laundry-related items such as detergent or a laundry basket with him at the time.
From this evidence, the jury could reasonably infer defendant was not a resident of the apartment with access to the laundry room at night. The jury could also infer defendant did not have a legitimate, lawful purpose in entering the laundry room. In other words, he was not there to do laundry.
Once defendant was inside, both Collins and Paris testified they could hear loud banging noises like he was hitting the vending machines. Collins described hearing metal on metal, and metal on plexiglass. A reasonable inference from this evidence is that defendant repeatedly hit the vending machines with the metal pole he used to break into the laundry room in an attempt to get either food or money from the machines without paying.
Davis, defendant's friend and a resident of the apartment where defendant went after breaking into the laundry room, testified that seconds after he let defendant into his apartment, law enforcement officers knocked on his door. Defendant was there in the living room when Davis exclaimed officers were at the door. Moments later when Davis let the officers into the apartment, defendant was found hiding behind the bathroom door and would not come out when confronted by police.
The jury could reasonably infer defendant fled to the bathroom and hid almost immediately upon learning law enforcement officers were at the front door. This flight was a strong indicator of consciousness of guilt, as the prosecutor argued, from which the jury could infer defendant intended to commit a theft when he shattered the laundry room's glass door and entered the structure. (Illinois v. Wardlow (2000) 528 U.S. 119, 125 ["Headlong flight--wherever it occurs--is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such"]; People v. Souza (1994) 9 Cal.4th 224, 235 (Souza) [because fleeing at the first sight of a uniformed officer "shows not only unwillingness to partake in questioning but also unwillingness to be observed and possibly identified, it is a much stronger indicator of consciousness of guilt"].)
The fact nothing was taken does not dictate a different result. That defendant was unsuccessful in stealing food or money from the vending machines does not mean he lacked the requisite intent to commit larceny when he entered the laundry room. (People v. Allen (1999) 21 Cal.4th 846, 865-866 [burglary does not require the actual theft of any property].)
Defendant's contention the prosecutor's rebuttal argument actually pointed to defendant's innocence is likewise not persuasive. The prosecutor did argue, as defendant points out, most people were likely familiar with shaking a vending machine to dislodge a paid-for item that had not come out or was otherwise stuck in the machine. The prosecutor, however, further argued that given the totality of the circumstances--including defendant did not live in the apartment complex and he smashed the window to get inside the laundry room--the only reasonable inference was, "[h]e wasn't just trying to shake loose his stuff that he bought." Given the evidence presented, the circumstances justified the jury's implicit finding defendant was not trying to get snacks he rightfully paid for from the vending machines. Although the loud noises and banging heard coming from the laundry room might also reasonably be reconciled with a contrary finding, we are bound to accept the jury's determination given the substantial evidence in the record supporting the inference drawn. (Farnam, supra, 28 Cal.4th at p. 143.)
We conclude the record supports the inference defendant intended to commit a larceny when he broke into the laundry room that night.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
NICHOLSON, J.