People v. Belton CA3 ( 2021 )

Filed 2/22/21 P. v. Belton CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C090374
Plaintiff and Respondent, (Super. Ct. No. 19FE002634)
v.
RONALD LEE BELTON, JR.,
Defendant and Appellant.
A jury found defendant Ronald Lee Belton, Jr., guilty of attempted burglary. In a
bifurcated proceeding, defendant admitted one prior conviction under the three strikes
law and five prior convictions with prison terms under section 667.5, subdivision
(b). On appeal, he contends: (1) insufficient evidence supports his conviction for
attempted burglary because he never took a direct but ineffectual step toward burglarizing
the house; and (2) the prior prison term enhancements must be vacated based on the
retroactive application of Senate Bill No. 136 (Senate Bill 136). We will direct the trial
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court to strike defendant’s prior prison term enhancements. We otherwise affirm the
judgment.
FACTS AND PROCEDURAL HISTORY
Maria G. and other members of her family owned a rental house on Riverside
Boulevard in Sacramento. On February 9, 2019, the house was vacant, and Maria G. was
renovating it in preparation for putting it on the rental market. That day, they washed the
windows and reinstalled the screens. The screens were installed from inside the house.
The screens had no dents, pry marks, or other damage. At about 6:00 that evening,
Maria G. locked the doors and windows and left.
The next day between about 8:00 a.m. and 9:00 a.m., Eloisa M. was walking on
Riverside Boulevard when she saw a man at the side gate of Maria G.’s house. When the
man saw Eloisa M., he dropped his hand from the latch on the gate and leaned onto a
garbage or recycling bin. Eloisa M. did not get a good look at the man, but she noticed
he was about five feet, nine inches tall and was wearing loose pants and a jacket with a
fake fur collar. Eloisa M. continued walking to the end of the block and then ran home to
get her husband, Dan M. Eloisa M. and Dan M. then got in their car, drove to Maria G.’s
house, and parked in front of it. Five minutes had passed, at most, since Eloisa M. had
walked past the house. The man she had previously seen was still at the house. Dan M.
identified him at trial as defendant.
Eloisa M. and Dan M. remained in their car and observed for about 15 minutes.
During that time, defendant climbed onto a blue recycling bin and tried to climb over the
fence but fell. Dan M. called 911 and told the operator that a man was climbing the fence
at Maria G.’s address and trying to get into the backyard. After telling someone at a
neighboring house about what they had seen, Eloisa M. and Dan M. left for church.
Dexter M. lived next door to Maria G.’s house. At approximately 8:00 or 9:00 on
the morning of February 10th, someone came to his door and told him about something
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happening outside. Dexter M. reported to the police that he went outside and saw a man
walk up to the fence on the left side of Maria G.’s property, jump over the fence, and
disappear into the backyard. After some time, the man reemerged by jumping back over
the fence on the right side of the property. At trial, Dexter M. initially testified that he
had not seen the man jump over the fence. He then testified that he did not remember
whether he had seen the man jump over the fence, but when he spoke with the police, he
told them the truth. The man had long black dreadlocks and looked like defendant but
was facing away from Dexter M., so Dexter M. did not see his face and could not make
an identification at trial. Dexter M. watched the man for about 30 minutes, until the
police arrived and arrested defendant.
At about 9:20 a.m., Sacramento Police Officer Mark Phillips arrived at Maria G.’s
house in response to a call about a suspect outside a vacant house. When Officer Phillips
arrived, he saw defendant, who matched the description he had received, near the
property’s north fence. Officer Phillips arrested and searched defendant and found a
large set of keys in his possession. Later that morning, Officer Jacob McCloskey went to
the house and met Maria G. and her brother there. Officer McCloskey walked around the
house with Maria G. and her brother. During this inspection, they found three damaged
window screens. One of the screens had been cut, its frame was bent, and it was hanging
ajar. Another frame was “barely hanging” off the window. The third was “mangled” and
was lying on the ground. Two of the damaged screens were in back of the house, and the
other was on the side. In addition, three window frames, on the back and side of the
house, had pry marks on them. According to Officer McCloskey, who had investigated
at least 50 burglaries, such marks usually indicate that someone tried to pry off a window
screen in order to enter the house. In his opinion someone had tried to enter Maria G.’s
house by prying off the window frames.
Officer Phillips, who returned to the house after driving defendant to jail, also
examined the broken screens and thought that it looked like an instrument had pried
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them, and that the damage could have been caused by the keys defendant possessed when
he was arrested. Officer Phillips had investigated many burglaries. The police lifted two
fingerprints from the frames of the damaged screens, but they did not match defendant’s
fingerprints. If someone had installed the screens the previous day, it was possible their
fingerprints would still be on the frames.
Defendant was charged with one count of attempted second degree burglary (Pen.
Code, §§ 664/459 [statutory section references that follow are to the Penal Code unless
otherwise stated.]). Two prior serious and/or violent felonies were alleged under sections
667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d), the three
strikes law, and six prior felony convictions resulting in prison terms were alleged under
section 667.5, subdivision (b).
Following a trial, the jury found defendant guilty as charged of attempted
burglary. In a bifurcated proceeding, defendant admitted one prior conviction under the
three strikes law and five prior convictions with prison terms under section 667.5,
subdivision (b).
The court imposed an aggregate sentence of seven years in state prison, as follows:
the middle term of one year, doubled under the three strikes law, plus one year for each
of the five priors under section 667.5, subdivision (b).
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends that the evidence was insufficient to support his conviction for
attempted burglary. He argues that there was no evidence that he committed “any overt
act in furtherance of the burglary.” He reasons he “was merely seen by the house
touching the latch on the gate of the house by a couple of neighbors.” He further argues
that there was insufficient evidence that he harbored the specific intent to commit a theft.
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Burglary requires entry into “any house . . . with intent to commit grand or petit
larceny or any felony . . . .” (§ 459.) Attempt requires “a specific intent to commit the
crime, and a direct but ineffectual act done toward its commission.” (§ 21a.) The direct
but ineffectual act “need not be the last proximate or ultimate step toward commission of
the crime . . . , nor need it satisfy any element of the crime,” but it must go beyond mere
preparation. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8.) “ ‘[P]reparation
consists in devising or arranging the means or measures necessary for the commission of
the offense; the attempt is the direct movement toward the commission after the
preparations are made.’ [Citations.]” (Id. at p. 8.) “ ‘ “[I]t is sufficient if it is the first or
some subsequent act directed towards that end after the preparations are made.” ’ ”
(Ibid.) And “[w]henever the design of a person to commit crime is clearly shown, slight
acts in furtherance of the design will constitute an attempt.” (Ibid.) When the evidence
justifies a reasonable inference of felonious intent, the verdict may not be disturbed on
appeal. (People v. Matson (1974) 13 Cal.3d 35, 41.)
Where the sufficiency of evidence is challenged on appeal, we review the record
in the light most favorable to the judgment to determine whether it discloses substantial
evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.) Substantial evidence is evidence
that is “reasonable, credible and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (Ibid.) If substantial
evidence supports the verdict, we defer to the fact finding. (Ibid.) We will not set aside
judgment for insufficient evidence unless it clearly appears, “that on no hypothesis
whatever is there sufficient substantial evidence to support the verdict of the jury.”
(People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
Here, there is substantial evidence of direct but ineffectual acts toward the
commission of burglary. Defendant acted suspiciously at the gate of a vacant house
where he had no business. He then entered the backyard by leaping over a fence and
remained there unseen for some time while the neighbor watched and waited for the
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police to arrive. After he reemerged, it was discovered that three window screens, which
had been undamaged the previous evening, were now badly damaged. Two of the
damaged screens were in back of the house, and the other was on the side, indicating that
defendant attempted to gain entry several times. In addition, three window frames, on the
back and side of the house, had pry marks on them. According to Officer McCloskey,
who had investigated at least 50 burglaries, these pry marks indicated that someone tried
to pry off a window screen in order to enter the house. Defendant was found and arrested
at the property carrying a large set of keys that were capable of making the pry marks.
From these facts, a jury could reasonably conclude defendant had specific intent to
burglarize the house and his actions went beyond mere preparation.
The foregoing facts also justify a reasonable inference of felonious intent because
the evidence supports the inference that defendant attempted to gain entry multiple times
through three different windows by forcibly prying open the window frames.
Defendant’s persistent attempts to enter Maria G.’s home surreptitiously without her
permission suggest he wished to do something inside the residence that Maria G. would
not have permitted. (See People v. Frye (1985) 166 Cal.App.3d 941, 947 [inferring
intent to steal from, among other circumstances, the fact that the defendant’s entry was
unauthorized].) Indeed, “burglarious intent can reasonably be inferred from an
unsuccessful entry alone.” (People v. Martin (1969) 275 Cal.App.2d 334, 339; People v.
Osegueda (1984) 163 Cal.App.3d Supp. 25, 29-30 [a “ ‘felonious intent to commit theft
may be inferred from the unlawful entry alone’ ”].) No evidence adduced at trial
suggested an innocent or non-felonious reason for defendant’s conduct. (See People v.
Jordan (1962) 204 Cal.App.2d 782, 786-787 [“the fact that the building was entered
through a window . . . without reasonable explanation of the entry, will warrant the
conclusion by a jury that the entry was made with the intention to commit theft”]; Martin,
at p. 339 [finding sufficient evidence of intent to steal or commit a felony where the
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circumstances were without reasonable explanation].) Thus, we reject defendant’s claim
that there was insufficient evidence of felonious intent.
II
Senate Bill 136
Defendant claims his prior prison term enhancements must be vacated based on
the retroactive application of Senate Bill 136. The People agree.
On October 8, 2019, the Governor signed Senate Bill 136 (2019-2020 Reg. Sess.),
which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1).
Senate Bill 136 narrowed eligibility for the one-year prior prison term enhancement to
those who have served a prior prison sentence for a sexually violent offense, as defined.
The amended provision states in pertinent part: “Except where subdivision (a) applies,
where the new offense is any felony for which a prison sentence or a sentence of
imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not
suspended, in addition and consecutive to any other sentence therefor, the court shall
impose a one-year term for each prior separate prison term for a sexually violent offense
as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code,
provided that no additional term shall be imposed under this subdivision for any prison
term served prior to a period of five years in which the defendant remained free of both
the commission of an offense which results in a felony conviction, and prison custody or
the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or
any felony sentence that is not suspended.” (§ 667.5, subd. (b).)
We agree with the parties that the amendment to Senate Bill 136 should be applied
retroactively in this case. Whether a particular statute is intended to apply retroactively is
a matter of statutory interpretation. (See People v. Superior Court (Lara) (2018)
4 Cal.5th 299, 307 [noting “the role of a court is to determine the intent of the
Legislature”].) Generally speaking, new criminal legislation is presumed to apply
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prospectively unless the statute expressly declares a contrary intent. (§ 3.) However,
where the Legislature has reduced punishment for criminal conduct, an inference arises
under In re Estrada (1965) 63 Cal.2d 740 (Estrada) “ ‘that, in the absence of contrary
indications, a legislative body ordinarily intends for ameliorative changes to the criminal
law to extend as broadly as possible, distinguishing only as necessary between sentences
that are final and sentences that are not.’ [Citations.]” (Lara, at p. 308.) “A new law
mitigates or lessens punishment when it either mandates reduction of a sentence or grants
a trial court the discretion to do so. [Citation.]” (People v. Hurlic (2018) 25 Cal.App.5th
50, 56.)
Here, Senate Bill 136 narrowed who was eligible for a section 667.5, subdivision
(b) prior prison term enhancement, thus rendering ineligible many individuals, including
defendant who served prior prison sentences based on prior convictions for robbery
(§ 211), negligent discharge of a firearm (§ 246.3), failure to register as a sex offender
(former § 290, subd. (g)(2)), and two counts of failure to register as a sex offender
(§ 290.018, subd. (b)). None of these offenses qualify as a sexually violent offense under
Welfare and Institutions Code, section 6600, subdivision (b). There is nothing in the bill
or its associated legislative history that indicates an intent that the court not apply this
amendment to all individuals whose sentences are not yet final. Under these
circumstances, we conclude Estrada’s inference of retroactive application applies. (See,
e.g., People v. Nasalga (1996) 12 Cal.4th 784, 797-798 [applying Estrada inference of
retroactivity to legislative changes to § 12022.6, subds. (a) and (b) enhancements].)
Accordingly, we will direct the trial court to strike defendant’s prior prison term
enhancements and “remand the matter for resentencing to allow the court to exercise its
sentencing discretion in light of the changed circumstances.” (People v. Jennings (2019)
42 Cal.App.5th 664, 682.)
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DISPOSITION
The trial court is directed to strike defendant’s section 667.5, subdivision (b) prior
prison term enhancements. In all other respects, the judgment is affirmed. The matter is
remanded for resentencing.
HULL, J.
We concur:
RAYE, P. J.
MAURO, J.
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