People v. Martinez CA1/4

Filed 8/9/16 P. v. Martinez CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A143331 v. MARY E. MARTINEZ, (Napa County Super. Ct. No. CR168039) Defendant and Appellant.

Defendant Mary Martinez appeals a judgment revoking her probation based on a finding that she entered or remained in a noncommercial dwelling house, apartment, or other residential place without consent in violation of Penal Code section 602.5,1 subdivision (a). Defendant’s appellate counsel alleges that there is insufficient evidence that the property in question is a “noncommercial dwelling” within the meaning of section 602.5, subdivision (a) and urges the court to reverse the finding that Martinez violated her probation based on a violation of this section. Having considered Martinez’s request, we affirm the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND On October 23, 2013, Martinez entered a guilty plea for one count of receiving stolen property in violation of section 496, subdivision (a), and in December 2013 was placed on three years of formal probation. Also in 2013, Blue Mountain, a real estate investment company, purchased 555 Riverside Drive in Napa and began work

1 Subsequent statutory references are to the Penal Code unless otherwise specified.

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remodeling the residence for resale. The residence had been coded as uninhabitable, and the company did not allow anyone to enter or remain on the property during the remodeling. 555 Riverside Drive was a single-family “residential” home in a residential neighborhood. In January 2014, Ryan Hale, a general contractor, arrived at 555 Riverdale Drive to begin planned work on the property and discovered Martinez and one other person sleeping inside in the front bedroom. Hale called the Napa Police Department, and two officers arrived immediately and cited Martinez for trespassing. She was charged with violating section 602.5, and on February 18, 2014, it was also alleged she violated her probation on the receiving stolen property offense. In May 2014, a jury found Martinez guilty of misdemeanor unauthorized entry into a noncommercial dwelling in violation of section 602.5, subdivision (a), and the trial court immediately thereafter found her in violation of her probation based on the same evidence. On August 14, 2014, the court formally revoked Martinez’s probation, reinstated it with modifications, and sentenced her to 154 days in jail with credit for time served. II. DISCUSSION On appeal, Martinez alleges the evidence is insufficient to establish that she entered and remained in a “noncommercial dwelling house, apartment, or other residential place” within the meaning of section 602.5, subdivision (a). Appellant urges the court to rely on In re D.C.L. (1978) 82 Cal.App.3d 123 (D.C.L.) and find that the property in question is not a noncommercial dwelling. We disagree, and affirm the judgment. Section 602.5, subdivision (a) provides, “Every person other than a public officer or employee acting within the course and scope of his or her employment in performance of a duty imposed by law, who enters or remains in any noncommercial dwelling house, apartment, or other residential place without consent of the owner, his or her agent, or the person in lawful possession thereof, is guilty of a misdemeanor.” The issue here is one of statutory interpretation.