Filed 7/21/14 P. v. Gronvold CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B247235
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA048581)
v.
DANIEL MARTIN GRONVOLD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa M.
Chung, Judge. Affirmed.
Thomas K. Macomber and Renée Paradis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell and
Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
__________________
1
Penal Code section 2933.1, subdivisions (a) and (c), limit a defendant’s worktime
credits under section 2933 and presentence conduct credits under section 4019 to no more
than 15 percent of the actual period of confinement for any person convicted of a felony
offense listed in section 667.5, subdivision (c), as a “violent felony.” One such violent
felony is first degree (residential) burglary “wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during the commission of
the burglary.” (§ 667.5, subd. (c)(21).)
Ten years ago in People v. Garcia (2004) 121 Cal.App.4th 271 (Garcia) this court
held there was neither a statutory nor a federal constitutional right to a jury determination
whether the defendant’s first degree burglary qualified as a violent felony for purposes of
the presentence conduct limitation prescribed by section 2933.1, subdivision (c). Our
federal constitutional analysis focused primarily on the scope of Apprendi v. New Jersey
(2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi), which held any
fact that increases the penalty for a crime beyond the prescribed statutory maximum,
other than a prior conviction, must be submitted to the jury and proved beyond a
reasonable doubt. However, our discussion of that issue also cited Harris v. United
States (2002) 536 U.S. 545, 565 [122 S.Ct. 2406, 153 L.Ed.2d 524], which had concluded
factors determining an increased minimum penalty for an offense, if there was no
increase beyond the statutory maximum penalty, could be decided by the trial judge
rather than the jury. Harris was overruled last year by Alleyne v. United States (2013)
570 U.S. ___ [133 S.Ct. 2151, 186 L.Ed.2d. 314] (Alleyne), which held Apprendi applies
with equal force to facts increasing the mandatory minimum penalty for an offense.
Daniel M. Gronvold was convicted after a jury trial of first degree burglary. At
sentencing the court found true the charge in the information that another person, other
than an accomplice, was present in the residence during the commission of the burglary
and calculated Gronvold’s presentence custody credit pursuant to the conduct limitation
1
Statutory references are to the Penal Code.
2
prescribed by section 2933.1, subdivision (c), for a violent felony. On appeal Gronvold
contends his Sixth and Fourteenth Amendment right to a jury trial was violated by the
trial court’s finding that someone was present in the residence at the time of the burglary,
arguing our decision in Garcia is no longer good law in light of the Supreme Court’s
decision in Alleyne overruling Harris v. United States. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Gronvold was charged in an information filed July 13, 2012 with one count of first
degree burglary (§ 459) and one count of grand theft (§ 487, subd. (a)). As to the
burglary it was specially alleged, “the above offense is a violent felony within the
meaning of Penal Code 667.5(c) in that another person, other than an accomplice, was
present in the residence during the commission of the above offense.” The information
further alleged Gronvold had suffered one prior serious felony (making a criminal threat)
within the meaning of both section 667, subdivision (a), and the three strikes law (§§ 667,
subds. (b)-(i); 1170.12, subds. (a)-(d)) and had served several separate prison terms for
prior felony convictions (§ 667.5, subd. (b)).
Gronvold pleaded not guilty and denied the special allegations. Prior to the start
of trial, the grand theft charge was dismissed in furtherance of justice (§ 1385).
2. The Evidence at Trial
Peter Bringas co-owned a two-story, partially furnished home in Lancaster that
was in pre-foreclosure. He stayed in the home at least once each week on weekends.
Bringas retained Stan Gates, a realtor, to help him sell the house.
At approximately 11 a.m. on March 14, 2010 Gates installed a lockbox on the
door for potential buyers and their agents and did a walk-through inspection of the
property. Gates noticed things were in disarray: Cabinets were open; it appeared that
someone had rummaged through the closets; and kitchen items were on counters where
they did not belong. A computer printer, which normally was on the desk in the upstairs
3
office, had been placed on the second floor stair landing. Gates telephoned Bringas and
reported what he had seen inside the house.
Richard Genari, the real estate agent for potential buyers Scott and Lisa
Van Weelden, arrived at the house on March 14, 2010 between noon and 2:00 p.m.
Genari noticed a black pickup truck in the driveway, backed up to the garage of the
house, and recognized the young woman standing on the passenger side of the vehicle as
the daughter of a real estate agent who worked with Genari. The woman, Janene Lavelle,
told Genari she was meeting a friend but might have come to the wrong house and then
drove off in the truck. (Lavelle repeated this explanation for her presence at Bringas’s
home to law enforcement officers when they initially contacted her after the burglary was
reported.) Apparently neither Genari nor the Van Weeldens saw any household goods or
electronics in the truck when Lavelle left.
Genari and the Van Weeldens entered the house using the key Gates had left in the
lockbox. They encountered Gronvold as he was coming down the stairs, smoking a
cigarette. Gronvold said he was there to clean up the house (that is, to empty it of any
trash). Gronvold asked if Lavelle was still outside and became angry when told she was
not. Gronvold then left the house. Genari called Gates, told him what had happened and
gave him the license plate number of the truck, which Lisa Van Weelden had written
down. The description of the truck and the license number matched Lavelle’s 2007 black
Toyota Tundra.
Gates returned to the house. He noticed the printer that had been at the top of the
stairs on his earlier visit was no longer there. Bringas went to the house around 4:00 p.m.
that day. He testified the house appeared to have been ransacked. Some goods had been
thrown around the floor. Several pillow cases were filled with kitchen items (pots, pans
and glasses) and stacked by the front door, together with the computer printer. Bringas
ultimately determined a computer, lawn mower, cordless drill, DVD player, three mink
coats, other items of clothing and several major appliances were missing.
4
Lavelle, who had been convicted at an earlier trial of first degree burglary for her
role in the March 14, 2010 incident, testified she and her husband had been considering
purchasing a home. When she saw the for-sale sign in the yard of Bringas’s home, she
and her friend Gronvold stopped to look at the house. She did not intend to enter the
residence and did not do so. She did not know whether Gronvold had entered the home.
Gronvold testified in his own defense. He explained he had accepted Lavelle’s
last-minute invitation to help her clean out a home in foreclosure, something the two of
them had previously done. Lavelle entered the home first through the front door; he was
not sure how she had gained entry. Gronvold followed her in and saw a lot of boxes
stacked throughout the house. He walked upstairs to look around and evaluate the job.
He was in the house for about 10 minutes. When he came downstairs, he encountered
Genari, who told him Lavelle had left. He was unhappy about that because it was
unusual for her to leave him, especially in an unfamiliar part of town. After confirming
that Lavelle had driven away in the truck, Gronvold left the neighborhood.
In closing argument the prosecutor emphasized to prove burglary the People did
not have to establish Gronvold actually stole anything from Bringas’s house, only that he
had entered the home with the intent to commit a theft. He cited as evidence of that
intent the movement of the computer printer from the upstairs office to the top of the
stairs to the front door. He posited that Lavelle’s truck had been backed up to the garage,
rather than parked on the street or facing forward, to permit easy loading of stolen goods
and that Lavelle was standing outside acting as a lookout. The prosecutor emphasized
Lavelle’s false story about attempting to visit a friend when initially confronted by
Genari, as well as the fact that Lavelle’s testimony was that she had stopped at the home
to see if she wanted to purchase it, not, as Gronvold testified, to clean it up. The
prosecutor also suggested the home had been burglarized at some point prior to Gates’s
March 14, 2010 morning walk-through by either Gronvold or Lavelle or both of them and
they had then returned later that day to steal more things.
5
Defense counsel reviewed the evidence he asserted raised a reasonable doubt
whether Gronvold had entered the house with an intent to commit a theft or was simply
there, at Lavelle’s request, to help her clean out the house. Counsel suggested, if items
had been stolen from the home, they had been taken at some time prior to Gronvold’s
arrival and argued that, even if Gronvold had moved things inside the house, which he
denied, that did not necessarily mean he had formed an intent to steal them.
3. Verdict and Sentencing
The jury found Gronvold guilty of burglary and further found true the allegation
the dwelling was inhabited during the commission of the offense, making it first degree
burglary. In bifurcated proceedings following the jury verdict, the court found the person
present allegation had been proved beyond a reasonable doubt, noting, “It doesn’t change
the sentencing range in terms of the 2-4-6. It is more of a credit issue in terms of what is
awarded in terms of the ultimate sentence.”
Gronvold admitted the prior conviction allegations, and the court denied
Gronvold’s motion to dismiss his prior strike conviction. The court then sentenced
Gronvold to an aggregate state prison term of 21 years: the upper term of six years
doubled under the three strikes law, plus five years for the prior serious felony conviction
and four years for the prior prison sentences. Gronvold was awarded a total of 483 days
of presentence custody credit: 420 days of actual custody and 63 days (15 percent of
420) of conduct credit. The court also imposed the statutory fees, assessments and fines.
DISCUSSION
1. Section 2933.1’s Limits on Conduct and Worktime Credits for Violent Felons
Former section 4019, as it was in effect on March 14, 2010 when Gronvold
committed this burglary, provided that certain defendants could earn presentence conduct
credits at the rate of two days for every two days in custody, commonly referred to as
one-for-one credits, but defendants who had committed a serious felony were subject to
the pre-January 25, 2010 formula for calculating presentence credits—six days deemed
served for every four days spent in actual custody. (Stats. 2009, 3rd Ex. Sess 2009-2010,
6
ch. 28, § 50.) Notwithstanding section 4019, however, section 2933.1, subdivision (c),
further limits presentence conduct credits to no more than 15 percent of the actual period
of confinement for any person convicted of one of the crimes listed as a violent felony in
section 667.5, subdivision (c).
Similarly, section 2933, subdivision (b), allows an inmate serving a sentence in
state prison to earn worktime credit on a one-for-one basis with actual time in custody
based on participation in a qualifying work, training or educational program, but
section 2933.1, subdivision (a), imposes a 15 percent cap for worktime credit for inmates
convicted of a violent felony: “Notwithstanding any other law, any person who is
convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no
more than 15 percent of worktime credit, as defined in Section 2933.”
The nature of section 2933.1’s limitations on the accrual of conduct credit was
explained in People v. Lara (2012) 54 Cal.4th 896 (Lara) in which the Supreme Court
held a trial court lacked authority under section 1385 to disregard credit-limiting facts
disqualifying a local prisoner from earning day-for-day conduct credits under
section 4019. This holding was based on the established rule that a trial court’s power
under section 1385 reaches only the individual charges and allegations in a criminal
action; the court may not strike facts that need not be charged or alleged. (Lara, at
p. 901; see generally In re Varnell (2003) 30 Cal.4th 1132.)
The trial court in Lara had accepted a negotiated plea agreement that included
striking under section 1385 defendant’s prior conviction for first degree burglary, which,
as a serious offense, would otherwise have required sentencing him as a second strike
offender under the three strikes law and imposing a five-year serious felony enhancement
under section 667.5, subdivision (a). In concluding the trial court could not also ignore
the prior burglary conviction in determining defendant’s eligibility for conduct credits,
the Lara Court stated, “The historical facts that limit a defendant’s ability to earn conduct
credits do not form part of the charges and allegations in a criminal action.” (Lara,
supra, 54 Cal.4th at p. 901.) As to the argument that credit disabilities must be pleaded
7
and proved to the trier of fact because they increase punishment, the Court explained
these disqualifying facts do not define the range of permissible sentencing. (Id. at
p. 905.) Rather, they are similar to “sentencing factors” that affect the specific sentence
within the range authorized by the jury’s findings: Like sentencing factors, “the
disqualifying facts cannot remove a sentence from the statutory range. Instead, they
merely limit a defendant’s ability to earn credits against a sentence for good behavior.”
(Ibid.)
The Supreme Court described the nature of conduct credits in a comparable
manner in People v. Brown (2012) 54 Cal.4th 314, decided the month before Lara. The
Brown Court held the more generous presentence conduct credit formula set forth in
former section 4019 in effect between January and September 2010—the version of the
statute applicable to Gronvold—applied prospectively, “meaning that qualified prisoners
in local custody first became eligible to earn credit for good behavior at the increased rate
beginning on the statute’s operative date.” (Brown, at p. 318.)2 In distinguishing cases
involving retroactive application of statutes lessening the punishment for a particular
offense to previously convicted offenders (see, e.g., In re Estrada (1965) 63 Cal.2d 740),
the Court emphasized the difference between “statutes that provide behavior incentives
(e.g., conduct credits) and statutes that ‘mitigat[e] . . . the penalty for a particular crime.’”
(Brown, at p. 326.) “Conduct credits encourage prisoners to conform to prison
regulations, to refrain from criminal and assaultive conduct, and to participate in work
and other rehabilitative activities.” (Id. at p. 317.)
2. Apprendi, Harris, and Alleyne
In Apprendi, supra, 530 U.S. 466 the defendant had been sentenced to state prison
for 12 years under a New Jersey hate-crime statute that increased the maximum term of
imprisonment from 10 years to 20 years if the trial judge found by a preponderance of the
2
The Brown Court also held the equal protection clauses of the federal and state
Constitutions did not require retroactive application of this iteration of section 4019.
(People v. Brown, supra, 54 Cal.4th at pp. 318, 328-330.)
8
evidence the crime had been committed “‘to intimidate an individual or group of
individuals because of race, color, gender, handicap, religion, sexual orientation or
ethnicity.’” (Id. at pp. 468-469.) The Supreme Court invalidated the statute, explaining
the crime, together with its sentence enhancement, were the “functional equivalent” of a
single greater crime and holding the federal Constitution requires all elements of a crime
be submitted to a jury and proved beyond a reasonable doubt: “Other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
(Id. at p. 490; accord Blakely v. Washington (2004) 542 U.S. 296, 301 [124 S.Ct. 2531,
159 L.Ed.2d 403] [quoting Apprendi].) Although Apprendi held any “facts that increase
the prescribed range of penalties to which a criminal defendant is exposed” are elements
of the crime (Apprendi, at p. 490), the Court also recognized “nothing in this history
suggests that it is impermissible for judges to exercise discretion—taking into
consideration various factors relating both to offense and offender—in imposing a
judgment within the range prescribed by statute.” (Id. at p. 481.)
Harris v. United States, supra, 536 U.S. 545 limited Apprendi to facts increasing
the statutory maximum penalty for a crime, allowing the sentencing court to exercise
factfinding authority with respect to factors triggering a mandatory minimum sentence
below the maximum authorized by the jury’s verdict. Unlike the history reviewed in
Apprendi with respect to the maximum penalty for an offense, the Harris Court found
“no comparable historical practice of submitting facts increasing the mandatory minimum
to the jury, so the Apprendi rule did not extend to those facts.” (Harris, at p. 563.) Thus,
it was permissible for the trial court to find the facts giving rise to a mandatory minimum
sentence of seven years for brandishing a firearm (as opposed to merely being armed)
during the commission of a drug trafficking offense. Read together, Apprendi and Harris
meant those facts setting the outer limit of a sentence were the elements of the crime for
the purpose of federal constitutional analysis, but a legislature could constitutionally
9
restrict the sentencing court’s discretion in selecting the prison term imposed by requiring
defendants to serve minimum terms after the court made certain factual findings.
Harris v. United States was overruled in Alleyne, supra, 570 U.S. ___ [133 S.Ct.
2151], which also involved the federal statute imposing a seven-year mandatory
minimum term for brandishing a firearm during the commission of prescribed offenses.
The Alleyne Court held, “When a finding of fact alters the legally prescribed punishment
so as to aggravate it, the fact necessarily forms a constituent part of a new offense and
must be submitted to the jury.” (Id. at p. ___ [133 S.Ct. at p. 2162].) “In Apprendi, we
held that a fact is by definition an element of the offense and must be submitted to the
jury if it increases the punishment above what is otherwise legally prescribed. [Citation.]
While Harris declined to extend this principle to facts increasing mandatory minimum
sentences, Apprendi’s definition of ‘elements’ necessarily includes not only facts that
increase the ceiling, but also those that increase the floor. Both kinds of facts alter the
prescribed range of sentences to which a defendant is exposed and do so in a manner that
aggravates the punishment. [Citations.] Facts that increase the mandatory minimum
sentence are therefore elements and must be submitted to the jury and found beyond a
3
reasonable doubt.” (Alleyne, at p. ___ [133 S.Ct. at p. 2158].)
3
The Alleyne Court also observed, “Defining facts that increase a mandatory
statutory minimum to be part of the substantive offense enables the defendant to predict
the legally applicable penalty from the face of the indictment.” (Alleyne, supra, 570 U.S.
at p. ___ [133 S.Ct. at p. 2161].) This salutary purpose is satisfied by section 667.5,
subdivision (c)(21)’s requirement that the presence of a nonaccomplice during the
commission of the burglary be charged, as well as proved, as it was in Gronvold’s
information. (See Garcia, supra, 121 Cal.App.4th at p. 275 [“[t]he pleading and proof
requirements of section 667.5, subdivision (c) safeguard the defendant’s right to notice of
the facts the prosecution intends to prove as well as the due process requirement that the
People actually prove the facts required either for imposing an increased penalty or for
making decisions regarding the severity of the sentence within the prescribed range”].)
10
3. There Is No Federal Constitutional Right to a Jury Determination of Facts
Relating to Conduct Credits
In Garcia, supra, 121 Cal.App.4th at page 277, this court held section 2933.1’s
limitations on earning conduct credits is not a sentencing enhancement and does not
increase the maximum six-year penalty prescribed for first degree burglary. “Rather, the
provisions for presentence conduct credits function as a sentence ‘reduction’ mechanism
outside the ambit of Apprendi. . . . Lessening the ‘discount’ for good conduct credit does
not increase the penalty beyond the prescribed maximum punishment and therefore does
not trigger the right to a jury trial identified in Apprendi.” (Garica, at p. 277; see also id.
at p. 274 [“determining whether a defendant’s current conviction for first degree burglary
is a violent felony for the purpose of calculating presentence conduct credits is properly
4
part of the trial court’s traditional sentencing function”].)
Garcia’s characterization of credit-limiting facts as not defining a defendant’s
sentencing range was fully embraced by the Supreme Court in Lara, supra, 54 Cal.4th
896, which, as discussed, held such disabling facts “do not form part of the charges and
allegations in a criminal action.” (Lara, at p. 901.) Citing Garcia with approval, as well
as several other post-Apprendi cases, the Court observed, “[T]he courts of this state have
rejected the argument that the People must allege credit disabilities in the accusatory
pleading or prove the disabling facts to the trier of fact.” (Ibid.) Indeed, in holding that
historic facts restricting a defendant’s ability to earn conduct credits need not be formally
pleaded and proved, the Lara Court explained, “we have imposed such a requirement
only as to facts that define the permissible range of sentencing for an offense by
increasing the sentence, prescribing a minimum term, or entirely precluding probation.”
4
Garcia also held section 667.5, subdivision (c)(21)’s definition of a violent felony
as those first degree burglaries “wherein it is charged and proved that another person,
other than an accomplice, was present in the residence during the commission of the
burglary” did not create a statutory right to a jury determination whether the burglary
qualified as a violent felony. (Garcia, supra, 121 Cal.App.4th at p. 278.) Gronvold does
not challenge that aspect of our prior decision.
11
(Id. at p. 906, italics added.) Facts limiting conduct credits, the Court held, do none of
those things. (See ibid.; see also People v. Brown, supra, 54 Cal.4th at p. 326 [conduct
credits provide behavior incentives, not mitigation of the penalty for a crime].)
Nothing in Alleyne, supra, 570 U.S. ___ [133 S.Ct. 2151] alters that analysis.
Whether sentenced to the statutory maximum (six years for first degree burglary under
section 461, subdivision (a)) or the statutory minimum (two years), limiting the
defendant’s ability to earn conduct credits, as a practical matter, lengthens the period he
or she must spend in prison. It is one determinant of the actual prison term served.
(Cf. Weaver v. Graham (1981) 450 U.S. 24, 33 [101 S.Ct. 960, 67 L.Ed.2d 17] [as
applied to prisoner whose offense preceded statute’s effective date, new law reducing
conduct credits violated ex post facto clause because it “substantially alters the
consequences attached to a crime already completed, and therefore changes ‘the quantum
of punishment’”]; see also Lara, supra, 54 Cal.4th at pp. 905-906 [“[w]e need not take
issue with the proposition that a person who is released a day early is punished a day
less”].) The impact of “lessening the discount” (or restricting the opportunity to earn the
discount) for good conduct is similar whether the defendant has been sentenced to six
years in prison or two years. If the former is not an increase in the upper end of the
sentencing range (that is, the maximum sentence) for purposes of Apprendi, the latter
cannot be an increase in the mandatory minimum sentence under Alleyne. (See In re
Pacheco (2007) 155 Cal.App.4th 1439, 1445 [“A reduction in the worktime credits
allowed by section 2933.1 may feel like ‘additional punishment’ to a prisoner . . . .
However, a reduction is credits is not considered ‘punishment’ under the law. Rather,
such credits are benefits a prisoner earns based on good conduct and participation in
qualifying programs.”].)
Our conclusion neither Apprendi nor Alleyne requires a jury, rather than the
sentencing court, to decide whether a first degree burglary qualifies as a violent felony
for purpose of calculating conduct credits does not mean the person present allegation
may properly be determined by the court in all situations. For example, section 186.22,
12
subdivision (b)(1)(B), authorizes a five-year enhancement for any serious felony
committed for the benefit of, at the direction of, or in association with any criminal street
gang, with the requisite specific intent. Section 186.22, subdivision (b)(1)(C), specifies a
10-year criminal street gang enhancement if the offense is a violent felony. If the People
seek the 10-year enhancement, the person present allegation that escalates first degree
robbery from a serious to a violent felony must be submitted to the jury under Apprendi.
(See Porter v. Superior Court (2009) 47 Cal.4th 125, 134; People v. Sengpadychith
5
(2001) 26 Cal.4th 316, 327.)
5
Gronvold observes that, in addition to limiting his ability to accrue conduct
credits, classifying his first degree burglary as a violent offense under section 667.5,
subdivision (c)(21), rather than a serious felony under section 1192.7, subdivision (c)(18)
(defining “any burglary of the first degree” as a “serious felony”), may have adverse
consequences in future criminal proceedings. For example, he explains, rather than the
one-year prior prison term enhancement specified in section 667.5, subdivision (b), if a
new violent felony is committed by an individual who has previously committed a violent
felony, the prior prison term enhancement is three years. (§ 667.5, subd. (a).) The proper
application of this aggravated form of the prior prison enhancement is not before us—
assuming it could ever be imposed in light of section 667, subdivision (a)’s five-year
enhancement for prior serious felonies and the dual-use prohibition against imposing
separate prior conviction and prior prison term enhancements for the same prior offense.
(See People v. Jones (1993) 5 Cal.4th 1142, 1150 [“when multiple statutory enhancement
provisions are available for the same prior offense, one of which is a section 667
enhancement, the greatest enhancement, but only that one, will apply”].) However, as we
explained in Garcia, supra, 121 Cal.App.4th at page 279, “[I]n an analogous situation the
Supreme Court held that determining whether a prior conviction is a serious or violent
felony for purposes of the Three Strikes law is ‘“the type of inquiry traditionally
performed by judges as part of the sentencing function”’ [citation], notwithstanding that
the determination may have ‘a factual content.’”
13
4. Any Possible Error in Not Submitting to the Jury the Question Whether a
Nonaccomplice Was Present During the Burglary Was Harmless Beyond a
Reasonable Doubt
Apprendi error is subject to harmless error review under Chapman v. California
(1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]. (See Washington v. Recuenco (2006)
548 U.S. 212, 222 [126 S.Ct. 2546, 165 L.Ed.2d 466] [“[f]ailure to submit a sentencing
factor to the jury, like failure to submit an element to the jury, is not structural error”];
People v. Sengpadychith, supra, 26 Cal.4th at p. 327.) Even if, contrary to our
conclusion, the person present allegation should have been submitted to the jury under
Apprendi and Alleyne, we are convinced beyond a reasonable doubt the jury would have
found the allegation true. (See generally People v. Sandoval (2007) 41 Cal.4th 825, 839
[test for harmless error in this context is whether the reviewing could can conclude,
“beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt
standard, unquestionably would have found true” the sentencing fact or circumstance had
it been submitted to the jury].)
In his testimony Gronvold admitted he was inside the Bringas residence when
other individuals (Genari and the Van Weeldens) were present in the home. Genari and
Lisa Van Weelden similarly testified they saw Gronvold in the residence after they had
entered it. Indeed, that fact was undisputed. The only contested issue at trial was
Gronvold’s intent when he entered: Was he there, as he claimed, to help Lavelle clean
out the house or had he entered the dwelling with the intent to commit a theft? The
properly instructed jury found Gronvold had the requisite intent for first degree
burglary—a finding not challenged in this appeal. In light of the evidence and that
finding, the jury would have necessarily also found Gronvold was present in the home
while another person, not an accomplice, was present had it been asked to make that
determination.
14
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
WOODS, J.
SEGAL, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
15