People v. Sabala CA3

Filed 3/9/21 P. v. Sabala CA3 See concurring & dissenting opinion NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C090574

Plaintiff and Respondent, (Super. Ct. No. 19FE010199)

v.

NICHOLAUS ALEXANDER SABALA,

Defendant and Appellant.

After a jury found defendant Nicholaus Alexander Sabala guilty of first degree residential burglary (Pen. Code, § 459; all statutory section references that follow are found in the Penal Code), and found true the allegation that another person other than an accomplice was inside the home during the burglary (§ 667.5, subd. (c)(21)), the trial court sentenced him to four years in state prison and imposed various costs. On appeal, defendant contends: (1) there was insufficient evidence for his conviction; and (2) the trial court improperly imposed costs after determining defendant was unable to pay, and without first holding a hearing to determine defendant’s ability to pay. We affirm the judgment and remand for correction of the abstract of judgment.

1

FACTS AND PROCEDURAL HISTORY Around 10:00 p.m. on June 9, 2019, a Sacramento homeowner, asleep in her bed, woke to the sound of her doorbell ringing. The homeowner saw no one at the front door, but later heard a “rustling” sound by the “shrubs” “along the driveway” of the house. She called 9-1-1. While making the call, the homeowner saw “a man trying to chisel off [the] screen and come through [the] kitchen window.” The man was “holding something in his hand, trying to pry [the] screen off.” Later, the man “jumped [a] gate and ended up in the backyard.” Minutes later, a Sacramento police officer detained defendant in the neighborhood Defendant had several plastic bags, which held assorted “junk,” including used paper cups. After a “field showup,” and due to his stature and shape, the homeowner positively identified defendant as the man she saw outside her home that night. The homeowner observed that the window screen had “scratch marks on it, and the screen was half removed but still attached to the window.” The windows and screens were “brand new,” as a sale of the house was pending. A “For Sale” sign was outside her home. In closing statements, the prosecutor argued defendant’s “intent was to go inside and try to steal something . . . . He sees if someone is home. He’s there late and when it’s dark out. He tries to pry the window open.” Defense counsel argued it was “absolutely . . . possible” that defendant intended to steal items from inside the home. But that was “not the only possible explanation.” Another possibility was that defendant intended “to find a place . . . to sleep for the night, a place to squat for the night,” given the “for sale sign in front of” the house, and the evidence that defendant was homeless -- the “bags full of junk” defendant had.