Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for the County No. LA058651, of Los Angeles. Raymond D. Mireles, Judge.
William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Robert David Breton, Deputy Attorney General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SUMMARY
Natasha Tania Karaitiana was convicted by a jury of attempted first degree burglary, a felony. On appeal, she claims prejudicial error in the trial court’s failure to instruct the jury that evidence of oral out-of-court statements is to be viewed with caution. She also contends there was insufficient evidence to support the jury’s verdict, and that the court improperly calculated presentence custody credits when she was sentenced. Her first two contentions are without merit, but the last is correct. We affirm the judgment as modified to reflect the correct presentence custody credits.
FACTUAL AND PROCEDURAL BACKGROUND
Karaitiana and Jeffrey Vanduinwyk were charged in an amended information with attempted first-degree residential burglary, with a person present, in violation of Penal Code sections 664 and 459. The information also alleged that Karaitiana (1) suffered two prior felony convictions within the meaning of section 1203, subdivision (e)(4) (prohibiting probation, except in unusual cases, for a person previously convicted twice of a felony) and (2) served a prior prison term for a felony conviction and did not remain free of custody for a five-year period subsequent to the prison term. (§ 667.5, subd. (b).)
All statutory references are to the Penal Code unless otherwise specified.
Vanduinwyk died before trial. Karaitiana pled not guilty and denied the special allegations. At trial, the following evidence was adduced.
David and Paula Latona lived in a nice neighborhood in Woodland Hills. At about 7:00 a.m. on the morning of April 4, 2008, Mrs. Latona came downstairs from the Latonas’ bedroom and took their five small dogs out into the large back yard, exiting with them through the sliding glass door of the dining room. After 15 or 20 minutes, she brought the dogs back in the house and closed the sliding door. She went into the kitchen to get a scissors, intending to go out to the back yard again to pick some flowers. When she returned to the sliding glass door, Vanduinwyk and Karaitiana were standing next to each other (only two inches apart) at the door; Vanduinwyk had his hand on the sliding door and had opened it about eight inches. Karaitiana was smoking a cigarette and was “very hyper.” She “kept turning around behind her and looking back” toward the side gate through which they had come.
Mrs. Latona said “what the hell?” to the intruders “because they kind of scared me.” Karaitiana said, “We thought the house was empty,” and Vanduinwyk “stopped her as soon as she started saying that,” turning around to Karaitiana “and kind of put his hand up like, ‘No, no. We came to look at an open house.’” Mrs. Latona said that it was “7:00 o’clock in the morning and there was no open house.” (The night before, the Latonas had put a Sotheby’s sign in the front yard with their agent’s name on it, but had not scheduled an open house.) One of the dogs was with Mrs. Latona and began to growl and snap at Vanduinwyk, and Mrs. Latona screamed for her husband to come downstairs. Vanduinwyk and Karaitiana, both of whom were wearing dark clothing, turned around and walked quickly toward the side gate that provided access to the back yard from the front of the house.
The side gate (which was latched and closed, but not locked) was “not easy to get to.” From the street, in order to reach the side gates, “[y]ou have to go across a sidewalk; up a series of small stairs, three or four stairs; down a path that’s about 15 feet to get to the courtyard proper; then you’ve got to go about 8 or 10 feet to the cobblestones that go off around the side. And that distance to the barriers, to the gate, is probably another 20, 25 feet.” From the side gates to the sliding glass door was “[p]robably 30, 35 feet.”
When Mrs. Latona screamed, her husband ran downstairs; she told him there were people in the house and they had gone around the house to the front. Mr. Latona went out the front door and found Vanduinwyk and Karaitiana in the front courtyard. Mr. Latona asked them what they were doing in his yard, and Vanduinwyk replied that “they were there for the open house.” Karaitiana kept saying, “I’m sorry, I’m sorry.” Vanduinwyk asked Mr. Latona to calm down, saying, “Take it easy. Take it easy, man,” whereupon Latona replied, “You know, you’re breaking into my house at 7:00 o’clock in the morning. Get the ‘F’ out of here.” Vanduinwyk and Karaitiana turned and “strode rather quickly out towards the truck,” which was “a very large four-door white truck … with a white trailer behind it.” Vanduinwyk got in the driver’s seat, Karaitiana entered the rear door on the passenger side, and they drove away. At no time before the incident did either of the Latonas hear knocking at the door or the doorbell, which they can hear very clearly from upstairs.
The Latonas immediately called the police and described the suspects, the truck and the trailer. Officer Misty Goodnight heard the police call at about 7:20 a.m. and, while en route to the Latona residence, observed the white truck and trailer parked near a Rite Aid store a couple of miles away (near a shopping center at Victory and Platte). She also observed a man matching Vanduinwyk’s description. A thin woman (not Karaitiana) was seated in the passenger seat and Karaitiana was standing about five feet from the passenger’s side of the vehicle in front of the Rite Aid. Vanduinwyk was detained for a field showup. Officer Goodnight then approached Karaitiana and asked her what she was doing. Karaitiana responded, “‘I don’t know what’s going on. I’m just waiting for the Rite Aid to open.” Karaitiana had a dirty appearance, was missing front teeth, and Goodnight did not believe she had anything to do with the incident, so she told Karaitiana to leave.
The Latonas went to the shopping center for a field verification; they identified Vanduinwyk and told the police the thin woman was not the woman who had been in their backyard.
Officer Jorge Santander arrived while Vanduinwyk was being detained, and saw Karaitiana standing near him. Santander then went to the Latona residence. When he later returned to the shopping center to impound the vehicle, there was a tow truck driver standing by the vehicle, as well as a bystander who told Santander that a woman who had been standing there had run toward the bank when she saw the police approach. Santander recognized Karaitiana, whom he had seen earlier. Santander asked Karaitiana what she was doing, and she said she wanted a ride from the tow truck driver. The police detained her, and the Latonas came back to the shopping center and identified her as the woman they had seen at their home. The police transported Karaitiana to the West Valley station, where she identified herself as Stacey McVickery. The police recovered various items from the truck, including bolt cutters from the bed of the truck, and pliers, screwdriver, lighter and flashlight from the center console.
The jury, which was instructed on aiding and abetting, found Karaitiana guilty of attempted burglary, and found true the allegation that a person other than an accomplice was present. After Karaitiana waived her right to a jury, the court found the allegations under sections 667.5 and 1203 to be true. Probation was denied and Karaitiana was sentenced to state prison for three years (the middle term of two years for the attempted burglary (§ 664, subd. (a), § 461) and one year for the prior prison term enhancement under section 667.5, subdivision (b)). Karaitiana was awarded presentence custody credits totaling 215 days.
The trial court also found Karaitiana to be in violation of probation in connection with a case involving possession of a controlled substance, and in another case accepted her guilty plea to one count of false personation of another (§ 529). Karaitiana was sentenced to a consecutive eight month term on the false personation case.
Karaitiana filed a timely notice of appeal.
DISCUSSION
Karaitiana complains about the lack of a cautionary instruction on her out-of-court statements, the insufficiency of the evidence, and the calculation of her presentence custody credits. Except for the last claim, we find no merit in her contentions.
1. The absence of a cautionary instruction.
The trial court instructed the jury with CALCRIM No. 358, as follows:
“You have heard evidence that the Defendant made oral or written statements before trial. You must decide whether or not the Defendant made any of these statements in whole or in part. If you decide the Defendant made such statements, consider the statements along with all the other evidence in reaching your verdict. It is up to you to decide how much importance to give such statements.”
The defense did not request, and the trial court failed to add, the cautionary instruction that is required when there is evidence of an incriminating out-of-court oral statement by the defendant, namely, to “[c]onsider with caution any statement made by the defendant tending to show her guilt unless the statement was written or otherwise recorded.” (CALCRIM No. 358; see People v. Beagle (1972) 6 Cal.3d 441, 455 (Beagle) [trial court erred in failing to instruct sua sponte that evidence of oral admissions must be viewed with caution].)
While failure to give the cautionary instruction is error, “the omission … does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.” (Beagle, supra, 6 Cal.3d at p. 455.) As the Supreme Court has explained, the purpose of the cautionary instruction is “to help the jury to determine whether the statement attributed to the defendant was in fact made ….” (People v. Pensinger (1991) 52 Cal.3d 1210, 1268 (Pensinger). Therefore, “courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately.” (Ibid.)
In this case, three different witnesses reported statements by defendant: Mrs. Latona heard her say, “We thought the house was empty,” Mr. Latona heard her say, “I’m sorry, I’m sorry,” and Officer Goodnight heard her say, when Goodnight asked her what she was doing, “I don’t know what’s going on. I’m just waiting for the Rite Aid to open.” There was no conflict in the evidence about the exact words used, their meaning, or whether the statements were repeated accurately. The jury had an opportunity to evaluate the reliability of the persons hearing the statements (see Pensinger, supra, 52 Cal.3d at p. 1269), and one of the statements was related by a law enforcement officer. (See Beagle, supra, 6 Cal.3d at p. 456.) Under these circumstances, and as in Beagle, we see “no reasonable probability that the jury would find that the statements either were not made or were not reported accurately” (ibid.) and accordingly no “reasonable probability that [the error] affected the verdict.” (Pensinger, supra, 52 Cal.3d at p. 1269.)
2. The sufficiency of the evidence.
When the sufficiency of evidence is challenged, we review the whole record, in the light most favorable to the prosecution, to determine whether it discloses substantial evidence from which a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Osband (1996) 13 Cal.4th 622, 690.) The elements of a crime may be established by circumstantial evidence and any reasonable inferences drawn from that evidence. (People v. White (1969) 71 Cal.2d 80, 83.)
A person who “enters any house … with intent to commit grand or petit larceny or any felony is guilty of burglary” (§ 459), and burglary of an inhabited dwelling is burglary of the first degree. (§ 460, subd. (a).) “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.) A person who aids and abets in the commission of a crime is a principal in the crime (§ 31), and a person “aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
Karaitiana claims there was insufficient evidence that Vanduinwyk committed attempted burglary, and even if there was such evidence, there was no substantial evidence that she knew of Vanduinwyk’s unlawful purpose, had the intent to commit or encourage or facilitate Vanduinwyk’s commission of the offense, or by act or advice aided or encouraged the attempted burglary. Karaitiana is wrong. First, the evidence was ample that Vanduinwyk was engaged in an attempted burglary: he (and Karaitiana) came to the Latona residence at 7:00 a.m., in a truck with a flat-bed trailer attached and with bolt cutters, pliers, screwdriver, and flashlight in the truck, and went round to the back of the house, which was “not easy to get to”; they did not knock on the door or ring the doorbell; when Mrs. Latona saw the two, Vanduinwyk had his hand on the sliding door to the dining room and had opened it about eight inches; and when confronted, Vanduinwyk said they had come for an open house (which was nonexistent and unlikely to have been set for 7:00 a.m.). This is more than sufficient evidence of an attempt by Vanduinwyk to enter the house with the intent to commit larceny or a felony.
As for Karaitiana, there was likewise sufficient evidence from which the jury could infer both that she knew Vanduinwyk intended to burglarize the house and that she intended to and did in fact try to help him do so. (See In re Juan G. (2003) 112 Cal.App.4th 1, 5 [“[a]mong the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense”]; People v. Silva (1956) 143 Cal.App.2d 162, 169 [one who is present “to serve as a lookout, or to give warning of approach of anyone seeking to interfere” is a principal in the crime committed].) Here, Karaitiana did everything Vanduinwyk did, except for opening the sliding door and owning the truck with the tools in it: she was in the secluded, difficult-to-reach back yard of the Latona property, standing two inches away from Vanduinwyk, at 7:00 a.m. in the morning, with no discernable innocuous purpose. She did not try to stop him from opening the sliding door, was “very hyper,” “very nervous,” and “kept looking behind her like she was expecting someone else to come behind her.” When confronted by Mrs. Latona, Karaitiana said, “We thought the house was empty,” and she kept saying, “I’m sorry, I’m sorry,” to Mr. Latona. And when taken into custody, she gave police a name different from her own. Based on these facts and the inferences reasonably to be drawn from them, a rational trier of fact could have found the essential elements of the crime – aiding and abetting an attempted burglary – beyond a reasonable doubt. (See People v. Osband supra, 13 Cal.4th at p. 690.) Karaitiana’s claim to the contrary is without merit.
1. The pre-sentence custody credits.
Under section 4019, a prisoner confined in a county or city jail following arrest and prior to the imposition of sentence for a felony conviction may be entitled to certain custody credits (often referred to “good time/worktime” credits), such that a term of six days will be deemed served for every four days spent in actual custody. (§ 4019, subds. (a)(4), (b), (c) & (f).) However, under section 2933.1, the accrual of credit is limited for persons convicted of specified felonies. Section 2933.1 provides that, “[n]otwithstanding Section 4019 or any other provision of law,” the maximum credit that may be earned against a period of confinement in a county or city jail following arrest “shall not exceed 15 percent of the actual period of confinement” for “any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 ….” (§ 2933.1, subds. (c) & (a).)
The offenses listed in subdivision (c) of section 667.5 are all violent felonies, and they include “[a]ny burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.” (§ 667.5, subd. (c)(21).) However, the offenses listed in section 667.5, subdivision (c) do not include attempted burglary of the first degree (or any other attempted crime other than attempted murder (§ 667.5, subd. (c)(12)).
When Karaitiana was sentenced on October 8, 2008, her counsel stated that Karaitiana had “188 actual days” of time served, and “I believe she’s entitled to 15 percent off of her sentence for good time, work time because of the allegation of a person present being found to be true,” which counsel (who said she had no calculator) calculated as “27 days of good time, work time.” The court then awarded credit for time served of 188 days and local conduct (good time/work time) credit of 27 days, for a total of 215 days.
Fifteen percent of 188 days is 28 days, not 27.
We find no fault with the trial court’s reliance on defense counsel’s calculations.
Karaitiana contends she is entitled to an additional 67 days of presentence conduct credits, because the court, at the instance of defense counsel, improperly applied the 15 percent limitation, since attempted first degree burglary is notone of the violent felonies listed in section 667.5, subdivision (c). The People do not address the merits of Karaitiana’s claim for additional credits. Instead, the People say her claim “cannot be considered in these proceedings” because Karaitiana failed to first request the trial court to correct the error. We do not agree.
As the People point out, section 1237.1 prohibits a defendant from taking an appeal from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, “unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.” But in People v. Acosta (1996) 48 Cal.App.4th 411 (Acosta), the court held that “section 1237.1, when properly construed does not require defense counsel to file motion to correct a presentence award of credits in order to raise that question on appeal when other issues are litigated on appeal.” (Id. at p. 427, emphasis added.) Acosta examined the legislative history of section 1237.1 and relevant court of appeal decisions in considerable detail (id. at pp. 420-427), concluding there was no evidence of a legislative design to require a prior motion in the trial court “when other contentions remain for decision” on appeal (id. at p. 425), and that the clear legislative intention was “that principles of judicial economy be advanced” by section 1237.1. (Id. at p. 426.) If there are other appellate issues, “requiring a motion be made in the trial court in order to raise the question on appeal no longer is an economical expenditure of public moneys.” (Id. at p. 427.)
The People nonetheless ask us not to consider Karaitiana’s claim because of a comment by the Supreme Court in People v. Mendez (1999) 19 Cal.4th 1084 (Mendez). In Mendez, the court held that, in order to obtain review of “certificate issues” – issues for which a certificate of probable cause is required in order to take an appeal from a conviction entered on a guilty or nolo contendere plea – a defendant must fully and timely comply with the applicable statute. (Id. at p. 1089.) The defendant had not done so, and the Supreme Court affirmed the Court of Appeal’s dismissal of defendant’s entire appeal. The only noncertificate issue raised in the appeal was the miscalculation of presentence custody credits, and the Court of Appeal had held that the defendant had not satisfied the condition stated in Acosta, namely, that section 1237.1 does not prevent a defendant from raising a custody credit question “if he had properly raised others as well ….” (Mendez, at p. 1093.) The Supreme Court stated that the Court of Appeal did not err in declining to address the issue, and stated that Acosta (“on whose reasoning and result we need not, and do not, pass”) was not to the contrary:
“[Acosta] holds no more than that the Court of Appeal may address a question of this sort if it is properly presented with others as well. It does not even suggest that the Court of Appeal must do so, especially when, as here, it finds that that condition is not satisfied.” (Mendez, supra, 19 Cal.4th at p. 1101.)
The People’s position is apparently that since no precedent tells us we must address Karaitiana’s custody credit claim, that claim “must be dismissed ….” We recognize there are other cases that predate Acosta, which point out that the right method for correcting errors in calculation of credits is to move for correction in the trial court first. (See, e.g., People v. Salazar (1994) 29 Cal.App.4th 1550, 1556-1557; People v. Culpepper (1994) 24 Cal.App.4th 1134, 1138-1139; People v. Fares (1993) 16 Cal.App.4th 954, 957; People v. Little (1993) 19 Cal.App.4th 449.) The reason for such a rule is that the trial court is in a better position to access the records that are necessary to determine the appropriate award of conduct credits. In this case, however, further records are not necessary and the correction is easily made. The People offer no reason why we should refuse follow Acosta; other cases have followed it. (E.g., People v. Sylvester (1997) 58 Cal.App.4th 1493, 1496, fn. 3 “[b]ecause defendant has raised other issues on appeal in addition to this conduct credit issue, as a matter of efficiency, we dispose of the issue in this opinion”].) We shall too.
Karaitiana is correct that attempted burglary of the first degree is notone of the violent felonies listed in section 667.5, and accordingly the 15 percent limitation in section 2933.1 does not apply. Accordingly, the court should have awarded credits as stated in section 4019, under which “six days will be deemed to have been served for every four days spent in actual custody.” (§ 4019, subd. (f).) Under section 4019, “[c]ustody credits are calculated by dividing the number of actual days custody by four and multiplying the result (excluding any remainder) by two.” (People v. Madison (1993) 17 Cal.App.4th 783, 787.) Thus, assuming the actual custody credit of 188 days was correct, Karaitiana should have been awarded 94 (rather than 27) days of good time/work time credit (188 divided by 4 = 47 times 2 = 94).
As noted in the text, ante, the only attempted crime listed in section 667.5, subdivision (c) is attempted murder, and no provision of subdivision (c) otherwise includes attempts to commit a crime. (The Legislature has expressly included attempts to commit a crime in other statutes. Section 12022.53, which provides sentence enhancements for persons convicted of specified felonies who use a firearm, and which limits the total amount of credits awarded under section 4019 (or any other provision of law) to 15 percent of the total term of imprisonment when an enhancement is imposed under section 12022.53, explicitly includes “[a]ny attempt to commit a crime listed in this subdivision other than an assault.” (Burglary is not included among the specified felonies in section 12022.53.) (§ 12022.53, subds. (a)(18) & (i).))
DISPOSITION
The judgment is modified to reflect that Natasha Tania Karaitiana is to receive presentence credits of 188 days of actual custody credit plus 94 days of local conduct credit for total credits of 282 days. In all other respects, the judgment is affirmed.
We concur: BIGELOW, P. J., RUBIN, J.