People v. Savage CA5

Filed 9/14/21 P. v. Savage CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F081014 Plaintiff and Respondent, (Super. Ct. No. CRF57838) v.

ELMER GLENN SAVAGE, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M. Seibert, Judge. Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Robert Gezi and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P.J., Detjen, J. and DeSantos, J.

1

Defendant Elmer Glenn Savage, Jr., was convicted by jury trial of two counts of first degree residential burglary relating to two different structures, grand theft of personal property, and three counts of second degree burglary. On appeal, he contends (1) there was insufficient evidence to support one of the first degree residential burglary convictions because the structure at issue was not inhabited at the time of the crime; (2) the prosecutor committed misconduct by misstating the evidence during closing argument; and (3) the abstract of judgment should be corrected to accurately reflect that he was convicted of second degree burglary in count 7. We will reduce one of the offenses (count 2) to second degree burglary and remand the matter to the trial court for resentencing and correction of the abstract of judgment. In all other respects, we affirm. PROCEDURAL SUMMARY On May 7, 2019, the Tuolumne County District Attorney filed an information charging defendant with two counts of first degree residential burglary (Pen. Code, § 459;1 counts 1 and 2), three counts of second degree burglary (§ 459; counts 3, 7, and 8), grand theft of personal property (§ 487, subd. (a); count 4), vandalism over $400 (§ 594, subd. (a); count 5), and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 6). As to all counts, the complaint further alleged defendant suffered two prior prison terms (§ 667.5, subd. (b)) and 16 prior felony convictions (§ 1203, subd. (e)(4)). On February 19, 2020, the trial court granted defendant’s motion for judgment of acquittal (§ 1118.1) as to count 6. On February 20, 2020, a jury found defendant guilty of two counts of first degree residential burglary (counts 1 and 2), three counts of second degree burglary (counts 3, 7,