Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF145733 John I. Kelly, Judge. (Retired judge of the Kern County Super. Ct. assigned by the Chief Justice pursuant to art VI, § 6 of the Cal. Const.).
Rod Pacheco, District Attorney, and Alan D. Tate, Deputy District Attorney, for Plaintiff and Appellant.
Warren P. Robinson, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant, Kerry Vradenburg, of battery causing serious bodily injury (Pen. Code, § 243, subd. (d)), violation of a protective order resulting in physical injury (§ 273.6, subd. (b)) and inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)), during which he inflicted serious bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). In bifurcated proceedings, defendant admitted having suffered three prison priors (§ 667.5, subd. (b)), a serious prior (§ 667, subd. (a)), and a strike prior (§ 667, subds. (c) & (e)(1)). Defendant was sentenced to prison and the People appeal, claiming the sentence is improper. We agree with them. Therefore, we affirm the convictions, true findings and admissions and reverse the sentence, while remanding the matter to the trial court for resentencing consistent with the views expressed in this opinion.
All further statutory references are to the Penal Code unless otherwise indicated.
The facts surrounding the crimes will be described later in this opinion.
Proceedings Below
In sentencing defendant on June 19, 2009, the trial court said it was “going to stay any multiplication of any disposition because of the prior.” The court then said it was going to impose a midterm of four years in prison for the corporal injury conviction. The prosecutor told the court she thought the court needed to choose a term for the conviction and add to it a term for the serious bodily injury finding. The court said that the probation report had indicated that a sentence of three, four or five years was to be considered. The prosecutor correctly pointed out to the court that the report stated that that range applied to the serious bodily injury enhancement. The court agreed with the prosecutor that the probation report had recommended imposing the upper term of four years for the conviction. The prosecutor asked the court if it was imposing the upper term of four years for the conviction and the midterm of four years for the enhancement. The court responded, “No. Court is going to stay any further disposition and make it four years.” The prosecutor asked if the court was going to double the four year term for the conviction due to the strike. The court replied, “No, I’m not. I’m going to stay that aspect of it so that the... bottom line of sentence will be four years....” Defense counsel interjected that four years would be the upper, not the midterm, for the conviction. The court said, “This disposition... would be the four years which is the upper term.” The court later said that it was awarding credit under section 4019 of 24 days, added to defendant’s actual presentence time of 51 days, for a total of 75. Defense counsel asked the court to put on the record its reasons for staying the doubling of the sentence for the strike. When the court said it could not hear her, she said, “If you could just state, it seems you’re choosing to strike the strike for purposes of this case because of the mitigating factors. If you could just state those for the record.” The court replied, “The probation report can be considered in that regard as to any further evaluation in that regard.” The court stated that it was not going to change the sentence and the prosecutor asked to “make [her] record[.]” She pointed out that the court had not listed any mitigating factors and she agreed with defense counsel that if the court was “not applying the punishment for the strike” it needed to state that for the record. She added that the court had not mentioned the three prison prior enhancements and she asked that the court impose them. She said the term should be more than four years, based on defendant’s history and the facts surrounding this crime, and she wanted it doubled for the strike. The court replied, “If you want to argue the disposition of this case, then... what you need to do is file the appropriate review request to the appellate court.” The clerk then told the judge that she/he could not stay the sentences for the battery and violation of a protective order convictions unless the court first imposed the time for them. Defense counsel said the court could not impose a sentence for the battery because of Penal Code section 654. The court said, “[T]he [c]ourt is not going to impose duplicate times, but merely stay those matters at this point in time, without any order being made as it relates to the amount of the actual time imposed for those.” The court asked the clerk if that made his/her job more difficult. She/he replied that it did but added, “We’ll figure it out.” Defense counsel asked for 30 days concurrent for the violation of a protective order conviction. The prosecutor asked for one year consecutive. The court agreed with defense counsel.
The probation report listed no mitigating factors related to the conviction or to defendant.
About a month later, defense counsel filed an “Invitation to the Court to Enter Findings on the Record to Support the Court’s Striking of a Prior Strike and Other Enhancements.” The “Invitation” obviously assumed that the court had stricken all the punishments and/or all the enhancements, save the term for the corporal injury conviction, at sentencing and it asked the court to amend the minutes of the sentencing hearing “to include the following reasons pursuant to Penal Code [section] 1385” which it then listed in the form of a proposed order. At the hearing on this document on July 16, 2009, defense counsel said that her research revealed that if the court did not state reasons on the record for “striking” defendant’s prison priors, his strike prior and the punishment for the serious bodily injury finding, “it will come back on the People’s appeal for resentencing.” She urged the court to recall its sentence under section 1170 and state the reasons on the record. Defense counsel reiterated the reasons she had put in her proposed order. The People argued that section 1170 did not give the defense the authority to ask for this once the defendant has been sentenced, therefore, the court should do nothing. In the alternative, they requested that the court not “strike” the strike, the prison priors or the enhancement for reasons set forth in their moving papers, some of which they reiterated. The court stated that it was not going to change “the bottom line of the sentencing process[.]” The court said it was “granting the motion” and it ordered that the minutes of the sentencing hearing be amended “to include the following reasons pursuant to... Penal Code section 13851 [sic].... [D]efendant’s strike prior... is from 1994, and it is remote in time and no reasonable basis [sic] upon which to include within the disposition, other than to note that it’s remote in time, and, therefore, not considered as far as the adding to the sentencing that was imposed. [¶] Secondly, [defendant] showed, during his last parole period, that he was not a danger to society. He was gainfully employed and managed to overcome his drug addiction through the process, which had been the cause of the prior strike.... [¶] And thirdly, based on all the evidence the [c]ourt heard during this trial, ... and the [c]ourt review of the probation report, four years is an appropriate sentence[.]” Except for a few insignificant flourishes, this order was a replication of the proposed order defense counsel had put in her “Invitation.”
Issues and Discussion
1. Failure to Impose a Five Year Term for the Serious Felony Prior
The parties agree that the matter must be remanded for resentencing because the trial court lacked authority to not impose a five year term for defendant’s serious prior conviction (§ 1385, subd. (b)).
2. Sentence for the Section 12022.7 Enhancement and the Section 667.5, subdivision (b) Enhancements
The People contend that the trial court “had not stricken [any of the] enhancements on the day of sentencing.” As stated above, when the prosecutor asked the court if it was imposing the upper term of four years for the conviction and the midterm of three years for the section 12022.7 enhancement, the court said it was not, that it was going to “stay any further disposition and make it four years.” Additionally, the court did not impose any terms for defendant’s three prison priors (§ 667.5, subd. (b)) at sentencing. Therefore, we agree with the People that the court did not strike either of these enhancements or their punishment at sentencing. On July 16, 2009, the court did not address these enhancements specifically, although it is clear at both proceedings that the court did not wish to impose additional time for them. Moreover, because the court adopted, without any significant change, the proposed order authored by defense counsel, and because her order was designed to “support the court’s striking of a prior strike and other enhancements[, ]” we will disregard the fact that the trial court did not, when sentencing defendant, strike anything and we will assume that it was doing so on July 16, 2009 and stating its reasons for doing so. Although the People assert, as they did unsuccessfully below, that the court lacked authority to act on July 16, both times they fail to cite authority so holding. Defendant, on the other hand, correctly points out that an unauthorized sentence can be corrected at any time (People v. Reyes (1989) 212 Cal.App.3d 852, 856) and we are aware of no prohibition on a trial court issuing a nunc pro tunc order under such circumstances.
We do this also because in their opposition to the “Invitation” the People, inter alia, opposed “the court striking the punishment for defendant’s prior strike and three prison priors.” Additionally, as we have already stated, at the hearing on July 16, 2009, both parties argued the merits of not imposing punishment for the strike, the prison priors and the serious bodily injury. (The People, as in their moving papers, addressed only the former two and not the latter.) While we acknowledge that in their reply brief, the People assert that the court below never said it was striking the serious bodily injury finding or its punishment, the same can be said of the prison priors. This gets us nowhere, particularly as the People’s opening brief asserts only that either the court lacked authority to do what it did on July 16, 2009, or, failing that, that striking the serious bodily injury and prison prior enhancements was an abuse of discretion.
People v. Bradley (1998) 64 Cal.App.4th 386, 390, 391, held that to neither strike nor impose a prior prison enhancement constitutes an unauthorized sentence.
A dismissal under section 1385 “requires a balancing of society’s interests against that of the defendant.” (People v. McAlonan (1972) 22 Cal.App.3d 982, 987 [Fourth Dist., Div. One]; Accord, People v. Orin (1975) 13 Cal.3d 937, 945.) “The court... acts improperly if guided solely by its personal belief regarding the effect a particular sentencing law may have on a defendant, while ignoring the defendant’s background, the nature of defendant’s present offenses, and other individualized considerations.” (People v. Orabuena (2004) 116 Cal.App.4th 84, 99.)
The trial court’s refusal to here impose any time for the victim’s serious bodily injury or defendant’s prison priors (and the serious prior conviction) appears to be motivated more by a desire to arrive at a particular pre-determined sentence, which the court believed to be the appropriate one in this case, rather than an exercise of discretion, after balancing the interests of the defendant against those of society. Moreover, as we describe more fully in connection with the strike, the record does not support the reasons the trial court gave for dismissing these enhancements and/or their punishments. Therefore, the trial court abused its discretion in this regard and remand for resentencing is appropriate. (See People v. Benevides (1998) 64 Cal.App.4th 728, 735, disapproved on other grounds in People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).) Upon remand, the trial court must either impose sentences for these enhancements or strike either them or the sentences for them and state reasons on the record that are both supported by the record and reflect more than a simple determination that “four years is the appropriate sentence in this case.”
We decline the People’s invitation to simply impose this and all the other disputed enhancements under the authority of People v. White Eagle (1996) 48 Cal.App.4th 1511, 1520 and People v. Miles (1996) 43 Cal.App.4th 364, 368, 369. In White Eagle, the trial court made an error of law by concluding that section 654 barred the imposition of punishment for a section 667.5, subdivision (b) enhancement. The appellate court noted, “Not only did the [trial] court not show an inclination to engage in any exercise in mitigation, it chose to impose the maximum term it believed possible notwithstanding the circumstances [defendant] now asserts. Accordingly, we perceive no reasonable probability a remand for consideration of a motion to strike the enhancement would result in benefit to [defendant].” (White Eagle at p. 1521.) Here, the opposite is true. It is clear that the trial court wished to exercise its discretion to show defendant leniency and we cannot interfere with that power so long as it is exercised correctly. Thus, we remand to give the trial court the opportunity to exercise its discretion under section 1385 in a proper fashion. In Miles, the trial court imposed a sentence that violated the terms of section 667, subdivisions (c)(2)(A)(ii) and (c)(2)(B), which the appellate court corrected without assessing any exercise of discretion by the trial court. Again, this is not the case here. The trial court was clearly attempting to show the defendant leniency and it did so incorrectly-if it technically pronounced a legally unauthorized sentence, we should not be correcting it on appeal by ignoring the obvious intent of the court below.
3. Dismissal of the Strike
A trial court’s discretionary decision to dismiss a strike is reviewed for abuse of discretion. (Carmony, supra, 33 Cal.4th 367, 373.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) In dismissing a strike, the trial court “must consider... in light of the nature and circumstances of his present felon[y] and prior serious and/or violent felony conviction..., and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one... serious and/or violent felon[y].” (People v. Williams (1998) 17 Cal.4th 148, 161.)
We examine the trial court’s statement of reasons for dismissing defendant’s strike. First, the court found that defendant’s strike, which occurred in 1994, was remote in time. However, the remoteness of a strike is not significant for purposes of supporting its dismissal when the strike is followed by criminal activity and bad performance on parole or probation. (People v. Gaston (1999) 74 Cal.App.4th 310, 321 [Court of Appeal reversed the trial court’s dismissal of a strike that was 17 years old, but was followed by recidivism.].) Here, the year following his strike conviction, defendant was convicted of the misdemeanor of selling or distributing a hypodermic needle, for which he was granted probation. The following year, he was convicted again of the same misdemeanor, along with possession of drug paraphernalia, for which he was again granted probation, which was revoked in 1997. Also in 1996, he twice violated parole in the case which included the strike. In 1997, he was convicted of the felonies of unlawful taking or driving of a vehicle and receiving stolen property. He was sentenced to prison for six years. According to him, he served seven years in prison and was released in 2004, the same year he began the job he had at the time of these crimes. He said he served one year of parole and was released in 2005. However, that same year, he was convicted of the misdemeanors of driving without a license and possessing less than 28.5 grams of marijuana, along with two vehicle infractions. In 2006, he was convicted of two Vehicle Code infractions. In 2007, he was convicted of inflicting corporal injury on the victim of these crimes and a protective order was issued ordering defendant to have no contact with the victim. Six months later, he violated the probation that had been granted in that case and was again granted probation. He committed these crimes during that period of probation and nine months after the prior corporal injury conviction and, of course, in violation of the protective order that had been issued. Defendant acknowledged at trial that he was aware that he had been ordered not to have contact with the victim. Yet, both the victim and defendant testified that defendant was living with her at the time of the crimes, and had been since May 2008, six months after the restraining order had been issued. He violated probation again in January 2009, four months after these crimes, and it was revoked and reactivated. Two days later, it was revoked again and subsequently reactivated. The same month, defendant was convicted of two Vehicle Code misdemeanors and two infractions. The probation report concluded that defendant’s prior performance on probation or parole was unsatisfactory. Even defendant, himself, in his sentencing memo, conceded that his “prior performance on probation and parole has not been exemplary.” Therefore, the significance of the fact that defendant’s strike prior is remote in time is diminished by the fact that he has not led a crime free life since. (See People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [Court of Appeal reversed the trial court’s dismissal of a strike that was 20 years old where the defendant had led a life of crime after it.].)
Of course, this statement necessarily also applied to the dismissal of the prison priors or the terms imposed for them and the serious bodily injury enhancement or the term imposed for it.
Next, the trial court found that during his last period of parole, defendant did not pose a danger to society in that he was employed and had overcome his drug habit, which had caused the 1994 strike. However, according to defendant’s sentencing memo, “[i]n 2000[, ] tired of being in an[d] out of prison[, ] [defendant] stopped using drugs, found permanent employment and had finally gotten his life back on track.” Of course, defendant, by his own account, was in prison in 2000 and remained there until 2004 and did not become employed until May of 2004. Defendant stated that he was on parole for one year after being released from prison and this constitutes his last grant of parole before he committed these crimes. It cannot be determined from the record (therefore, the trial court also could not have determined) whether defendant’s November 18, 2005 convictions for driving without a license and possessing less than 28.5 grams of marijuana, along with his two Vehicle Code infractions, were based on acts that occurred during this period of parole. In any event, defendant’s claim that he stopped using drugs and got his life on track in 2000 is belied by his conviction of possessing marijuana in 2005. Certainly, this conviction also conflicts with defendant’s claim that during this final period of parole he overcame his drug habit, which, of course, is contradicted by defendant’s claim that he overcame it in 2000. Finally, there is absolutely no evidence in the record before this court, which is the same as the record that was before the trial court, to support the trial court’s finding that defendant committed the 1994 first degree burglary that constituted the strike because of his drug addiction.
Defense counsel repeated this assertion later in her June 2009 sentencing memo, saying, “[Defendant] is drug free, and has been for nearly nine years.” Defendant said essentially the same at his 2009 trial, testifying that he had been sober “from drugs” for 10 years and had become sober while in prison.
At trial, defendant testified that he became sober during the early part of his prison sentence.
To the extent the wording of defendant’s proposed order (see text at p. 5) might be construed as meaning that he managed to overcome his drug addiction, but not during this period, defense counsel at the July 16, 2009 hearing cleared up any ambiguity by saying, “[D]uring his parole period, [defendant] was able to overcome his drug addiction....”
We say this with the exception of the proposed order defendant supplied which was essentially adopted word for word by the trial court (see text at p. 5). The assertion in the proposed order is that one of defendant’s 1994 first degree burglary convictions, which became the strike, was committed due to his drug addiction. However, this is not supported by anything in the record before this or the trial court.
Finally, the court said that based on its review of all the evidence it heard during trial and its review of the probation report, four years is the appropriate sentence. First, both during the preliminary hearing and at trial, the victim recanted the stories she had given her neighbor, the police, paramedics and hospital personnel that defendant had pushed her onto the bed, hit her several times in the face and choked her. She claimed during both proceedings that she was under the influence of drugs and she and defendant were in a tug of war over a lamp which she had picked up and was swinging during an argument she initiated, and defendant let go of the lamp and it hit her in the face. On the other hand, a police officer who responded to the scene testified that he saw no blood on or near the lamp, but he did see a red mark on the victim’s neck indicating that she had been choked. A picture of her neck was shown to the jury at trial, as was a picture of the defendant wearing the shirt he had worn during the incident, which was bloody and looked like it had been pulled. Defendant also had blood on his pants. Defendant told this officer that, during an argument, the victim had pushed him to the ground twice and “slap boxed” him, but he had not hit her and did not know how she became injured. He had said nothing about a lamp. The physician’s assistant who treated the victim at the hospital testified that she had multiple nasal fractures, some worse than others, and a bruised left eye orbit (a black eye). Neither the police officer who responded to the scene nor any of the medical personnel who interacted with the victim after the attack believed that she was under the influence of drugs. The police officer who responded to the scene of the 2007 domestic violence incident involving defendant and the victim testified that the victim told him that defendant had hit the left side of her face, scratched her while forcibly removing a shirt she was wearing, grabbed her arms and pushed her onto the bed, then tried unsuccessfully to jump on her, and head butted her hitting her nose. The officer observed the injuries that resulted from this. After hearing all this, and, no doubt knowing that it is not uncommon for victims of domestic violence to recant, the jury obviously rejected the stories told by the victim and defendant. The jury found that the injuries to the victim were serious. Defendant admitted that he had previously battered the victim.
Defendant’s trial testimony was consistent with hers.
Defendant had left before the officer arrived.
Defendant was six feet three inches and 200 pounds at the time and the victim was five feet four inches.
Defendant admitted that even after the prior incident of domestic violence, the victim moved back in with him.
Despite the sentencing court’s purported reliance on the probation report, it contains nothing that would support the dismissal of the strike or any of the other enhancements. As stated before, it cited no mitigating circumstances. It outlined the 42-year-old defendant’s lengthy adult criminal record, which began when he was 19 and includes convictions of five felonies and numerous violations of parole and probation. Defendant suffered convictions almost every year he was not in prison, and sometimes more than one a year. In fact, at the sentencing hearing, the trial court itself noted, “[D]efendant has an awful record. I mean, five priors.... [T]hat’s way beyond the limit.... This is a serious problem.... The [c]ourt needs to look at the overall picture of all of our background as well as make a determination here as to what is best for you and society.... [I]t becomes necessary in a case like this [to send people to prison because of] what the priors are and what the [c]ourt’s consideration of the circumstances are.” The probation report noted that defendant said concerning the instant crimes that “a lot of the events were misconstrued in [c]ourt.... He regarded this incident as a bad situation, a bad deal. [¶]... He denied he has a problem with his anger. [¶]... He does not feel the crime deserves... a state prison commitment. His only admission is [that] he did violate a restraining order.... [T]he other charges were misconstrued.” The probation report noted, “[Defendant] failed to take into account how his actions have affected the victim. He... remark[ed] how he completed the court ordered 52-week domestic violence/batterer’s treatment program [that had been ordered after his] conviction [involving] the same victim in 2007. However, he completed the program after being bailed out of jail for committing th[ese] offense[s]. Obviously the defendant learned little from the counseling he received and failed to practice the skills he was taught. [¶]... Previous attempts at probation/parole have been tried[.]”
Because the probation officer who authored the report apparently was unaware that defendant had admitted suffering a strike prior and a serious prior, these aspects of his sentence were not discussed in the probation report. However, the officer did recommend that defendant receive the upper term for the corporal injury conviction.
We must “assess whether the reasons given by the trial court are a reasonable basis for concluding that a defendant should be deemed ‘outside [of the Three Strikes law’s two strike provision’s] spirit[.]’” (People v. Strong (2001) 87 Cal.App.4th 328, 336.) When those reasons are not supported by the record, they cannot serve as such a basis.
In People v. McGlothin (1998) 67 Cal.App.4th 468, 476, 477 (McGlothin), the appellate court overturned the trial court’s dismissal of a strike, saying, “[T]he [trial] court looked beyond the Three Strikes sentencing scheme itself and beyond the ‘generally applicable sentencing principles.’ [Citation.] Instead, the court simply concluded that [the sentence provided for by the verdicts and true findings] was too harsh a penalty for [the crimes]. The Legislature has concluded otherwise, when the defendant has [prior convictions that bring him under the provisions of the Three Strikes Law].... [¶]... [¶] [A] reviewing court may not overturn an exercise of discretion simply because it would have decided differently.... [W]e may not substitute our conclusions for those of the trial court.... Instead, we conclude that this trial court’s decision was an abuse of discretion because it was not based on appropriate legal principles, and because it substituted its conclusions for those of the electorate.” (Id. at p. 477.)
“Under our statutory framework, judges are not empowered to fashion any sentence they choose. The Legislature has created a sentencing structure within which every court must operate. Both the Legislature and the People, by initiative, have adopted a particular sentencing scheme for repeat offenders. A court may not simply substitute its own opinion of what would be a better policy, or a more appropriately calibrated system of punishment, in place of that articulated by the People from whom the court’s authority flows.... [T]he reason a court is required to state the basis for a [Penal Code] section 1385 dismissal is ‘“to protect the public interest against improper or corrupt... dismissals” and to impose a purposeful restraint upon the exercise of judicial power “‘lest magistral discretion sweep away the government of laws.’” [Citations.]’ [Citations.]” (Cited with approval in People v. Thornton (1999) 73 Cal.App.4th 42, 48, 49 [Fourth Dist, Div. Two].)
As in McGlothin, it is clear that the trial court here had decided that four years was the appropriate term for what defendant had done, both in this case and in the past, and it was going to impose that term regardless of the two strikes provision of the Three Strikes Law and the existence of enhancements for serious bodily injury, a serious prior conviction and three prison priors.
Although we are reluctant to interfere with the exercise of discretion by the trial court, where, as here, that exercise has no support in the record and was based on an improper motivation, we are forced to reverse the trial court’s dismissal of defendant’s strike. Unless, upon remand, the trial court can supply reasons supported by the record showing that defendant is not within the spirit of the second strike provisions of the Three Strikes Law, and justifying the dismissal of the other enhancements or their sentences, the court should double the sentence it imposes for the corporal injury conviction and impose terms for the enhancements. In its exercise of discretion, the trial court should be guided by the following concerning the strike prior, “[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court ‘conclud[es] that an exception to the scheme should be made, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme. As our Supreme Court concluded, ‘plainly the Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.’ [¶] In this light, extraordinary must the circumstances be by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack.” (People v. Strong (2001) 87 Cal.App.4th 328, 337, 338, italics added.)
4. Custody Credits
The parties agree that correct custody credits cannot be calculated until the trial court determines whether it wants to strike the serious bodily injury finding or strike the sentence for it or impose a term for it. Therefore, upon remand, the trial court should make this determination and award custody credits accordingly.
If the trial court strikes only the sentence for the serious bodily injury enhancement, section 2933.1, subdivision (a)’s 15 percent limitation on credits applies. (In re Pacheco (2007) 155 Cal.App.4th 1439, 1442, 1444-1445.) We agree with the reasoning in Pacheco.
Disposition
The convictions, true findings and admissions are affirmed. The sentence is reversed and the matter is remanded for resentencing in a manner consistent with the views expressed in this opinion.
We concur: RICHLI J. KING J.
At trial, when defendant was asked about both of his 1994 burglaries, he testified as follows, “[M]y mom was on vacation. [¶]... [¶]... I had permission to be there from my mom, but my mom was on vacation.” “I was... staying at the house..., which my aunt very much disapproved [of.] [¶]... [¶]... [She] had repeatedly tried to remove me from the house. She didn’t want me there unless my mom was there. And a burglary came out of that because she locked the house on me, and I... went through the window to get into my property.” Defendant said at the time he was using cocaine and methamphetamine, but he did not attribute his actions to either drug. However, later, he said he had pled guilty to this because he “believed [he] had brought that upon [himself] throughout [his] drug use” which makes no sense given his explanation of the crime. As to the second burglary, which involved the home of a friend, he responded “Yes” to his attorney’s leading question, “[W]ere you stealing to get property to feed the drug habit?” Later, however, he testified that he did not break into his friend’s house to steal property-that he and the friend had had a disagreement over who owned a certain piece of property and he went into his friend’s house to reclaim what he believed was rightfully his. Like the other burglary, this does not sound like a crime motivated by a drug habit.