People v. Aguilar

Opinion

ASHBY, J.

Michael David Aguilar appeals from the judgment entered following his conviction by a jury of residential burglary (Pen. Code, § 459) and the findings after a court trial of two prior serious felony convictions. (Pen. Code, § 667, subd. (a).) He contends: “The court’s denial of appellant’s request for an instruction on attempted burglary was prejudicial error.”

Viewing the evidence in accordance with the usual rules on appeal

(People

v.

Barnes

(1986) 42 Cal.3d 284, 303 [228 Cal.Rptr. 228, 721 P.2d 110]), it was established that at about 11 a.m. on May 2, 1988, Timothy Tokumoto heard a knock on the door while in the bathroom of his residence. He then heard someone forcing the gate to his backyard open. He emerged from the bathroom and went to the kitchen, where he observed a tattooed arm reaching through the “doggie door” in his back door. The arm was inserted up to the elbow joint and was attempting to unlock the door from the inside. Tokumoto kicked the arm, surprising the intruder, who gasped, pulled his hand back and ran back through the back gate.

Tokumoto grabbed a golf club and went outside where he saw appellant emerge from the back door, run across the street, and hide behind a small shopping center. About one minute later, Tokumoto saw appellant run towards a car with Illinois license plates and drive off. Appellant later

[1436]

admitted to Los Angeles Police Detective Anthony Manente that he was the intruder and made a written statement which corroborated Tokumoto’s version of the incident.

1

Appellant’s contention that the trial court erred in refusing to give the jury an instruction on attempted burglary is meritless. The undisputed facts clearly established that appellant’s hand and arm were inside the house. This was an entry within the meaning of Penal Code section 459.

(People