People v. Bautista

THE PEOPLE, Plaintiff and Respondent, v. CHRYSTIAN M. BAUTISTA, Defendant and Appellant.

2d Crim. No. B278597

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

December 13, 2017

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. YA094190)

(Los Angeles County)

A jury convicted Chrystian M. Bautista of two counts of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)), one count of possession of methamphetamine (Health & Saf. Code, § 11377), and one count of possession of drug paraphernalia (Health & Saf. Code, § 11364). The trial court suspended execution of concurrent four-year sentences on the burglary convictions, and placed Bautista on five years of formal probation. Bautista contends: (1) the court should have granted his motion for judgment of acquittal on the two burglary charges, (2) there was insufficient evidence that he neither owned nor lacked consent to take the property at issue, (3) the court should have granted his request to instruct the jury on a mistake-of-fact defense, (4) the court should have barred evidence of prior conduct as irrelevant to his intent to steal, and (5) the court erroneously reduced the prosecution's burden of proof by labeling his prior conduct as an "alleged attempted burglary." We affirm.

BACKGROUND

Bautista moved into his mother and stepfather's house in the fall of 2015. They told him he could stay until he found a job. In mid-March 2016, his mother said he had to leave by the end of the month if he did not find a job. On March 31, his mother told him he could not live at the house any longer and that he was not allowed to be there. He removed his belongings later that day.

Over the next four weeks, Bautista entered his parents' house almost daily, without their permission, to take showers and to eat. His mother did not report the entries to police. She believed he had a key to the house.

On April 27, a television was missing from the house when Bautista's mother arrived home from work. The bathroom window was open. She found two notes in Bautista's handwriting, one addressed to her and one to her husband. The note to Bautista's stepfather read: "After seeing 2 what lengths you guys will go to not help me out . . . with at least showering or eating after most memorably, kicking me out, of the house I grew up in . . . . [I]t is interesting how you, now married, will kick me out and do the most 2 keep me down as I get up. [¶] Good thing you don't have any more kids 2 kick out and kick down. Welcome home . . . the one I grew up in."

Two weeks later, Bautista's mother changed the locks to the house. The next day, she noticed a hole had been drilledunderneath the new lock. Around 1:00 a.m. on May 13, she heard her car alarm. She went outside and saw Bautista trying to get into the trunk of her car. He left, dropping a pillow on the sidewalk, but returned and confronted his mother a few minutes later. He then left again.

The next day, Bautista was inside the house when his mother came home. His belongings were in the front yard. She called the sheriff's department and waited in her car. After Bautista left, she went inside and noticed that money and food were missing. A deputy arrested Bautista later that day, and found two mirrors belonging to his stepfather in his luggage.

Bautista admitted that he took the television from his parents' house on April 27. He said he lent it to a friend and planned to return it. Police recovered the television from Bautista's friend.

DISCUSSION

Motion for judgment of acquittal

Bautista contends the trial court should have granted his motion for judgment of acquittal on the two burglary charges because he had a right to enter his parents' house. We disagree.

A trial court may grant a motion for a judgment of acquittal "if the evidence then before the court is insufficient to sustain a conviction." (Pen. Code, § 1118.1.) When deciding the motion, the court views the evidence in the light most favorable to the prosecution, and determines whether substantial evidence supports each element of the crime charged. (Porter v. Superior Court (2009) 47 Cal.4th 125, 132.) "The question 'is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.' [Citation.]" (People v. Stevens (2007) 41 Cal.4th 182, 200.) This court appliesthe same standard, and we independently determine whether the evidence can sustain a verdict. (Ibid.)

A burglary is "an entry [that] invades a possessory right in a building . . . committed by a person who has no right to be [there]." (People v. Gauze (1975) 15 Cal.3d 709, 714.) Even if that person enters with consent, a burglary conviction will stand if the person "does not have an unconditional possessory right to enter." (People v. Pendleton (1979) 25 Cal.3d 371, 382.) Thus, to sustain the burglary convictions here, the prosecution must show that Bautista did not have the unconditional possessory right to enter his parents' home at the time of his entries. (People v. Davenport (1990) 219 Cal.App.3d 885, 892.)

The trial court properly denied Bautista's motion for judgment of acquittal on the two burglary charges because he did not have an unconditional possessory right to enter his parents' home. Bautista's mother told him he was not allowed in her home after March 31. In the notes he left on April 27, Bautista admitted he had been kicked out of the house by his stepfather. He moved his possessions out of the house. These facts support the conclusion that Bautista no longer had a possessory interest in the house when he entered on April 27 to take his mother's television or on May 13 to take his stepfather's money, food, and mirrors. (People v. Sears (1965) 62 Cal.2d 737, 746, overruled on other grounds by People v. Cahill (1993) 5 Cal.4th 478, 509-510; see also People v. Ulloa (2009) 180 Cal.App.4th 601, 609-610; People v. Gill (2008) 159 Cal.App.4th 149, 161; In re Richard M. (1988) 205 Cal.App.3d 7, 17.)

Bautista alternatively contends he had a license to be in his parents' house. But even if true, his license granted him no possessory interest in the house. (Spinks v. Equity ResidentialBriarwood Apartments (2009) 171 Cal.App.4th 1004, 1040.) And even if a license included a right of entry, that right was conditional and could be revoked at any time. (Ibid.) As leaseholders, Bautista's parents had possessory rights to their home, including the right to exclude others from it. (Danger Panda, LLC v. Launiu (2017) 10 Cal.App.5th 502, 513.) Here, they revoked Bautista's right of entry when they kicked him out on March 31. Any consent that remained after that revocation was passive at best. That is not a defense to burglary. (People v. Sigur (2015) 238 Cal.App.4th 656, 667 [for consent to constitute a defense to burglary, owner must actively invite the defendant to enter, knowing the defendant's larcenous intent; "merely standing by or passively permitting the entry will not do"].) Because Bautista did not have an unconditional possessory right to enter his parents' residence as a licensee, he could be guilty of burglarizing their home. (People v. Pendleton, supra, 25 Cal.3d at p. 382; see also People v. Frye (1998) 18 Cal.4th 894, 953-955, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Bautista relies on out-of-state cases to urge us to hold that "[h]e . . . had greater rights [to his parents' home] by virtue of the familial relationship than a mere licensee." But California law is different. In this state, "[p]arents have a right of possession in their home superior to the right of their children in that home. [Citation.]" (In re Richard M., supra, 205 Cal.App.3d at p. 17.) "'The law does not require them to submit to the . . . tyranny of a drug addict son who seeks to enter the home for the purpose of committing a theft.' [Citation.]" (Ibid.) The trial court's denial of Bautista's motion for judgment of acquittal was correct.Ownership of property and consent to take it

Bautista next contends the prosecution presented insufficient evidence that the television was not his, and that his stepfather did not consent to the taking of his money, food, and mirrors. We disagree.

The convictions require proof that Bautista entered his parents' home with the intent to commit theft. (Pen. Code, § 459; People v. Anderson (2009) 47 Cal.4th 92, 101.) Theft requires proof the property was taken from his parents without their consent. (People v. Davis (1998) 19 Cal.4th 301, 305.) We review Bautista's contentions for substantial evidence. (People v. Abilez (2007) 41 Cal.4th 472, 508.) In doing so, we presume all facts and inferences in support of the judgment, and disregard any contrary findings. (People v. Albillar (2010) 51 Cal.4th 47, 60.) We neither assess witness credibility nor reweigh evidence. (Ibid.) Reversal is unwarranted if "a reasonable trier of fact could find [Bautista] guilty beyond a reasonable doubt. [Citation.]" (Ibid.)

The prosecution put forth sufficient evidence to support the jury's conclusion that the television did not belong to Bautista. On direct examination, his mother said the television was hers. That is enough. (People v. Elliott (2012) 53 Cal.4th 535, 585 [single witness's testimony is sufficient to support a conviction].)

Bautista's contention that the prosecution failed to show that his stepfather did not give him permission to take his money, food, and mirrors is misplaced. Our Supreme Court has long held that the prosecution need not prove the victim's lack of consent to a theft. (See, e.g., People v. Davis (1893) 97 Cal. 194, 195.) Rather, consent is an affirmative...