People v. McCormack

Opinion

CARR, J.

A jury convicted defendant of one count of first degree burglary. (Pen. Code, § 459-)

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The court found true enhancing allegations defendant had suffered two prior serious felony convictions and that he had served three separate prior prison terms. (§§ 667, subd. (a), 667.5, subd. (b).) On appeal defendant asserts the trial court erred in instructing the jury it could convict defendant of burglary if it found he formed the intent to steal after he entered the relevant structure but before he entered the room within the structure from which items were taken. We find no error and affirm.

Facts

Harry Leivas returned to his brother’s house one afternoon and observed a car parked in front of the house. Defendant was sitting in the driver’s seat. Some time after Leivas entered the house he heard a knock on the door which he did not answer. When he got up to investigate he found defendant had entered the house, apparently through an unlocked door.

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Leivas saw defendant in the kitchen and asked what defendant was doing there. Defendant responded that Leivas had asked him in. Leivas denied this and told defendant he did not belong in the house. He asked defendant to leave but defendant refused.

Defendant then walked into the family room and asked Leivas if he wanted a beer and if he had jumper cables. Leivas responded negatively to both questions. At one point defendant also asked to use the phone.

Leivas went to a neighbor’s house and called the police. When the officers arrived they accompanied Leivas back into his brother’s house. Defendant was standing in the hallway carrying a sheet with items stuffed into it. When the officer entered the hallway defendant held his finger near the officer’s head as though he had a gun. The officer spun defendant around and the bundled sheet fell to the floor.

When Leivas’s brother Henry reentered his home he found items scattered on the floor in front of one of the bedrooms. These included jewelry, watches, knives and old coins, all of which had been taken from the bedrooms in the house.