Filed 8/24/20 P. v. Brown CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

BERNARD BROWN, JR.,

Defendant and Appellant.

B295442

(Los Angeles County

Super. Ct. No. NA109769)

APPEAL from judgment of the Superior Court of Los 

Angeles County. James D. Otto, Judge. Modified and affirmed 

with directions.

Randall Conner, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Michael C. Keller and Nicholas J. 

Webster, Deputy Attorneys General, for Plaintiff and 

Respondent.

_________________________________
2

Bernard Brown, Jr. appeals the judgment entered following 

a jury trial in which he was convicted of four counts of first 

degree residential burglary (counts 1, 2, 4, and 5; Pen. Code,1

§ 459) and one count of driving or taking a vehicle without 

consent (count 3; Veh. Code, § 10851, subd. (a)). As to count 2, 

the jury found true the allegation that another person other than 

an accomplice was present in the residence during the burglary. 

(Pen. Code, § 667.5, subd. (c).) Appellant admitted a prior 

conviction for driving or taking a vehicle without consent 

pursuant to section 666.5, and two prior convictions that 

qualified as strikes and as prior serious felony convictions (§ 667, 

subd. (a)(1)). The trial court imposed an aggregate sentence of 64 

years to life.2

Appellant contends and respondent agrees that appellant’s 

convictions on counts 4 and 5 for first degree residential burglary 

should be reduced to second degree burglary and the matter 

remanded to the trial court for resentencing. We agree. We 

reject appellant’s further contention that section 654 prohibits 

separate punishments for counts 1, 4 and 5 as well as his 

argument that counsel was ineffective for failing to make this 

meritless argument. Finally, we find substantial evidence 

supports appellant’s conviction on count 5.

1 Undesignated statutory references are to the Penal Code.

2 Appellant’s sentence included a concurrent 12-year fourmonth probation revocation sentence in Los Angeles County 

Superior Court case No. NA105258.
3

FACTUAL BACKGROUND3

In June 2018, John Atkinson and Valerie Adams lived in 

separate units of an apartment complex in Long Beach. The 

complex had a gated parking structure on the first floor; the 

residents’ apartments were two floors above the garage. Cars 

could enter the garage through an automated gate with a remote 

control. Pedestrians could access the garage through the same 

gate or by entering the apartment complex and then the garage 

through locked doors requiring a key.

On the evening of June 24, 2018, Adams drove her Honda 

Civic into the parking garage, parked, and locked the car. 

Between 9:00 and 10:00 that night, Adams’s daughter, Tammy 

Brawner, drove her Mercedes Benz into the garage and parked it 

alongside the Honda. She locked the car and went to her 

mother’s apartment where she spent the night.

Atkinson pulled his Chevy Camaro into the parking garage 

around 1:15 a.m. on June 25, 2018. He parked in his assigned 

space next to Adams’s Honda and the Mercedes, locked his car, 

and went to his apartment.

When Atkinson went to his car around 7:15 a.m. on 

June 25, 2018, he discovered his car’s front passenger side 

window had been shattered during the night. A pair of glasses, a 

Louis Vuitton wallet, a black wallet that Atkinson used for work, 

an iPod, a bag containing sports gear, and a set of keys were 

3 In this appeal, appellant challenges only his burglary 

convictions on counts 1, 4, and 5 of the five-count information 

filed on October 3, 2018. The facts underlying counts 2 and 3 of 

the information, which pertain to two separate offenses, are not 

relevant to this appeal. We therefore omit recitation of those 

facts.
4

missing from the car. The black wallet contained Atkinson’s 

work ID, a medical card, debit card, and his driver’s license.

Atkinson called the police and reported the break-in and 

theft. Having noticed the front driver’s side window of the 

Mercedes next to his car had been shattered, he went upstairs to 

inform Adams and Brawner of the damage to the cars.

Brawner found that the front driver’s side window of the 

Mercedes had been completely smashed out, and the glove 

compartment and center console were open. Two wallets 

containing Brawner’s identification, three debit cards and cash 

were missing. An Apple laptop computer and a few other items 

had been taken as well. The front driver’s side window of the 

Honda was also smashed out and interior compartments stood 

open. Adams reported that a pair of eyeglasses, an eyeglass case, 

an iPad, and a pair of Nike shoes were missing.

Atkinson contacted his credit union around 9:00 a.m. and 

learned that his debit card had been used at a McDonald’s that 

morning. Records from a Long Beach Target store showed that a 

purchase was attempted using Atkinson’s and Brawner’s debit or 

credit cards at a self-checkout machine on the morning of June 

25, 2018. A surveillance video from the Target showed appellant 

and another person using the self-checkout machines and leaving 

the store.

Appellant was arrested a few weeks later, on July 18, 2018. 

At the time of his arrest he was carrying a men’s Louis Vuitton 

wallet, which Atkinson identified as the one that had been stolen 

from his car. Appellant was found in possession of a device for 

breaking car windows when he was arrested. Appellant 

resembled the person making purchases with the stolen credit or 

debit cards on June 25, 2018, in the Target surveillance video, 
5

and his shoes with distinctive shoelaces matched those of the 

person in the video. In addition, appellant’s tattoos on his arm 

and an angel wing tattoo on his neck were consistent with the 

tattoos visible on the subject of the surveillance video.

DISCUSSION

I. The Convictions on Counts 4 and 5 Must Be 

Reduced to Second Degree Burglary

A. Standard of review

Appellant asserts that the evidence was insufficient to 

support first degree burglary convictions on counts 1, 4 and 5. 

Instead, he maintains that the evidence supported only one count 

of first degree burglary because he only entered the apartment 

complex parking garage one time and there was no evidence 

anyone was inside the vehicles when they were burglarized. The 

standard of review for appellant’s claim is well settled: “When 

the sufficiency of the evidence to support a conviction is 

challenged on appeal, we review the entire record in the light 

most favorable to the judgment to determine whether it contains 

evidence that is reasonable, credible, and of solid value from 

which a trier of fact could find the defendant guilty beyond a 

reasonable doubt. [Citation.] Our review must presume in 

support of the judgment the existence of every fact the jury could 

reasonably have deduced from the evidence.” (People v. Zaragoza

(2016) 1 Cal.5th 21, 44.)

B. Appellant committed a first degree burglary when he 

entered the inhabited building’s parking garage and 

second degree burglaries when he broke into the 

unoccupied vehicles

Appellant contends and respondent concedes that the 

single entry into the garage of the inhabited apartment building 
6

supports only one conviction for first degree residential burglary, 

and appellant’s convictions on counts 4 and 5 must be reduced to 

second degree burglary. We agree.

“Burglary is committed when a person ‘enters any . . . 

building’ with the intent of committing ‘larceny or any felony.’ ”

(People v. Yarbrough (2012) 54 Cal.4th 889, 890; People v. 

Montoya (1994) 7 Cal.4th 1027, 1041 (Montoya) [“burglary 

consists of an act⎯unlawful entry⎯accompanied by the ‘intent to 

commit grand or petit larceny or any felony’ ”]; § 459.) There are 

two degrees of burglary: A burglary of an inhabited 

dwelling⎯residential burglary⎯is of the first degree; “[a]ll other 

kinds of burglary are of the second degree.” (§ 460, subds. (a) & 

(b); Yarbrough, at p. 892.)

Courts give the term “inhabited dwelling” a broad, inclusive 

definition, focusing on whether the dwelling is used as a 

residence. (People v. Cruz (1996) 13 Cal.4th 764, 776; People v. 

Thorn (2009) 176 Cal.App.4th 255, 261 (Thorn).) “[T]he term 

‘inhabited dwelling house’ means a ‘structure where people 

ordinarily live and which is currently being used for dwelling 

purposes. [Citation.] A place is an inhabited dwelling if a person 

with possessory rights uses the place as sleeping quarters 

intending to continue doing so in the future.’ ” (Cruz, at p. 776; 

Thorn, at p. 261.)

Numerous courts have found an attached garage to be 

functionally connected to the building to which it is attached, and 

thus part of the inhabited dwelling for purposes of first degree 

burglary. (See, e.g., People v. Debouver (2016) 1 Cal.App.5th 972, 

981–982 [secured underground garage was integrated part of 

apartment complex]; People v. Harris (2014) 224 Cal.App.4th 86, 

89–90 [attached garage converted to guestroom with no direct 
7

access to the main house was part of the inhabited dwelling]; 

Thorn, supra, 176 Cal.App.4th at pp. 262–263 [carports located 

directly underneath apartments designated for residents’ parking 

were “ ‘functionally interconnected’ with the inhabited dwelling”]; 

In re Edwardo V. (1999) 70 Cal.App.4th 591, 594 [garage 

attached to residential duplex with no direct access to living units 

qualifies as an inhabited dwelling house under § 460]; People v. 

Fox (1997) 58 Cal.App.4th 1041, 1047 [trial court properly 

instructed jury that, when garage is attached to inhabited 

dwelling, it is considered part of the inhabited dwelling]; People v. 

Ingram (1995) 40 Cal.App.4th 1397, 1402, 1404 [garage with no 

direct access to house was functionally connected to residence 

where it shared roof with residence], overruled on other grounds 

in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8.)

Here, appellant was charged and convicted of three counts 

of first degree burglary⎯one count for each car he broke into in 

the same residential parking garage. But as appellant correctly 

maintains, the evidence established only one count of first degree 

burglary for a single entry into the apartment complex garage 

with the intent to commit theft and the actual theft of items from 

Atkinson’s Chevy charged in count 1. There was no evidence 

appellant entered the garage more than once with the intent to 

commit theft, and thus no evidence that he committed more than 

one first degree residential burglary. (See People v. Washington

(1996) 50 Cal.App.4th 568, 578–579 [“every entry with the 

requisite intent supports a separate conviction”].)

On the other hand, there was substantial evidence that 

appellant broke into the Honda and the Mercedes intending to 

commit theft. There was no evidence the cars themselves were 

inhabited. Accordingly, as appellant contends, the evidence 
8

supported convictions on counts 4 and 5 for second degree 

vehicular burglary, but not first degree residential burglary. 

(§§ 459, 460, subd. (b).)

Section 1181, subdivision 6, permits an appellate court to 

modify a verdict, finding or judgment where “the evidence shows 

the defendant to be not guilty of the degree of the crime of which 

he was convicted, but guilty of a lesser degree thereof, or of a 

lesser crime included therein, . . . without granting or ordering a 

new trial.” (People v. Cardona (1983) 142 Cal.App.3d 481, 484 

[reducing first degree burglary conviction to lesser offense where 

evidence insufficient to support finding that the property was 

inhabited, but there was no doubt of defendant’s guilt as to 

second degree burglary]; see People v. Daly (1992) 8 Cal.App.4th 

47, 57; People v. Tubby (1949) 34 Cal.2d 72, 79 [modifying 

judgment on appeal and affirming as modified where evidence 

insufficient to support murder in the first degree, but 

“unquestionably sufficient to support a conviction of second 

degree murder”].)

Because the evidence was insufficient to support first 

degree burglary convictions on counts 4 and 5, but was clearly 

sufficient to support convictions of second degree burglary, the 

judgment must be modified by reducing the degree of the crimes 
9

on counts 4 and 5 from first to second degree.4 The matter must 

then be remanded to the trial court for resentencing.5

II. Section 654 Does Not Prohibit Separate 

Punishments on Counts 1, 4 and 5

Appellant contends that separate punishments for counts 1, 

4 and 5 are prohibited under section 654 because they arose from 

an indivisible course of conduct.6 He thus asserts that in 

accordance with section 654, the trial court must impose midterm 

sentences on counts 4 and 5 and suspend execution of sentence on 

those counts. We disagree.

4 In light of our holding on this issue, appellant’s claims of 

ineffective assistance of counsel with respect to his convictions on 

counts 1, 4 and 5 are moot, and we need not address them. (See 

People v. Herrera (2006) 136 Cal.App.4th 1191, 1198 [“ ‘an action 

that originally was based on a justiciable controversy cannot be 

maintained on appeal if all the questions have become moot by 

subsequent acts or events’ ”]; In re Carr (1981) 116 Cal.App.3d 

962, 964, fn. 1 [issue becomes moot when relief sought is 

granted].)

5 Upon resentencing, the trial court may reexamine all of 

its sentencing choices in consideration of the entire sentencing 

scheme. (People v. Hill (1986) 185 Cal.App.3d 831, 834 [“rule is 

justified because an aggregate prison term is not a series of 

separate independent terms, but one term made up of 

interdependent components. The invalidity of one component 

infects the entire scheme”]; People v. Bautista (2005) 129 

Cal.App.4th 1431, 1438.)

6 Although the issue was not raised below, it is 

nevertheless cognizable because “[a]n unauthorized sentence is 

reviewable on appeal regardless of whether it was objected to at 

trial.” (People v. Rivera (2019) 7 Cal.5th 306, 349.)
10

A. Applicable law

Section 654, subdivision (a) provides: “An act or omission 

that is punishable in different ways by different provisions of law 

shall be punished under the provision that provides for the 

longest potential term of imprisonment, but in no case shall the 

act or omission be punished under more than one provision. An 

acquittal or conviction and sentence under any one bars a 

prosecution for the same act or omission under any other.” 

(§ 654, subd. (a); People v. Correa (2012) 54 Cal.4th 331, 335

(Correa).) When a defendant suffers multiple convictions for a 

single act or course of conduct and section 654 applies to bar 

multiple punishment, “the trial court must stay execution of 

sentence on the convictions for which multiple punishment is 

prohibited.” (People v. Reed (2006) 38 Cal.4th 1224, 1227 (Reed); 

Correa, at p. 337.)

By its plain terms, section 654 applies only to “[a]n act or 

omission that is punishable in different ways by different

provisions of law.” (§ 654, subd. (a), italics added; Correa, supra, 

54 Cal.4th at p. 341.) Thus, the statute only protects against 

multiple punishments for a single act or course of conduct; it does 

not prohibit multiple convictions for various offenses that may 

result from the same act or omission. (Correa, at pp. 336–337; 

Reed, supra, 38 Cal.4th at p. 1226 [“In general, a person may be

convicted of, although not punished for, more than one crime 

arising out of the same act or course of conduct”].)

Our Supreme Court has explained that “the purpose of

section 654 is to ensure that a defendant’s punishment will be 

commensurate with his culpability. (See, e.g., People v. Oates

(2004) 32 Cal.4th 1048, 1063 . . . ; [People v.] Latimer [(1993) 5 

Cal.4th 1203,] 1211; People v. Perez (1979) 23 Cal.3d 545, 550–
11

551 . . . ; Neal [v. State of California (1960)] 55 Cal.2d [11,] 20.)” 

(Correa, supra, 54 Cal.4th at p. 341.) In furtherance of the 

statute’s aim, its “protection has been extended to cases in which 

there are several offenses committed during ‘a course of conduct 

deemed to be indivisible in time.’ ” (People v. Harrison (1989) 48 

Cal.3d 321, 335 (Harrison).) That objective, however, would not 

be served by applying section 654 as “a bar to multiple 

punishment for multiple violations of the same provision of law.” 

(Correa, supra, 54 Cal.4th at p. 341.)

Accordingly, courts have held section 654 inapplicable in 

certain situations. For example, section 654 does not bar 

multiple punishments when the defendant has engaged in an act 

of violence against multiple victims. Section 654 is also 

“inapplicable to a course of conduct if the defendant ‘ “entertained 

multiple criminal objectives which were independent of and not 

merely incidental to each other.” ’ [Citation.] The application of 

this second exception ‘ “ ‘depends on the intent and objective of 

the actor. If all of the offenses were incident to one objective, the 

defendant may be punished for any one of such offenses but not 

for more than one.’ ” ’ ” (People v. Newman (2015) 238 

Cal.App.4th 103, 112; Harrison, supra, 48 Cal.3d at p. 335.) 

Finally, section 654 does not prohibit multiple punishments 

where the defendant’s course of conduct⎯even if it is directed to 

one objective⎯is divisible in time. (People v. Gaio (2000) 81 

Cal.App.4th 919, 935; People v. Beamon (1973) 8 Cal.3d 625, 639, 

fn. 11 [“a course of conduct divisible in time, although directed to 

one objective, may give rise to multiple violations and 

punishment”].) “This is particularly so where the offenses are 

temporally separated in such a way as to afford the defendant 

opportunity to reflect and to renew his or her intent before 
12

committing the next one, thereby aggravating the violation of 

public security or policy already undertaken.” (Gaio, at p. 935.)

In People v. Bowman (1989) 210 Cal.App.3d 443, 448, the 

court found no violation of section 654 in the trial court’s 

imposition of consecutive sentences where the defendant had 

broken into a car dealership, stolen supplies from an office, and 

broken into vehicles to steal electronics. The court explained: 

“Here defendant did not commit a single break-in as contended, 

but rather committed multiple break-ins, each with a separate 

felonious intent. While the felonious intent in each instance was 

the same, this does not make the various violations incidental to 

each other or to one primary criminal objective. Thus, even 

though the violations were part of an otherwise indivisible course 

of conduct in that they occurred during one night, it was within 

the trial court’s discretion to impose consecutive sentences.” 

(Ibid.; see also People v. O’Keefe (1990) 222 Cal.App.3d 517, 522 

[section 654 did not bar multiple punishments for burglaries of 

several dormitory rooms in same building because “entry into 

each room was separate and divisible conduct”].)

In our review of a sentencing claim under section 654 

where the trial court made no explicit ruling as to the application 

of section 654, “we infer that the court made the finding 

appropriate to the sentence it imposed, [and] we must affirm the 

sentence if an implied finding that section 654 does not apply is 

supported by substantial evidence.” (People v. Mejia (2017) 9 

Cal.App.5th 1036, 1045; People v. Tarris (2009) 180 Cal.App.4th 

612, 626–627.)
13

B. Section 654 does not apply to appellant’s burglary 

convictions

Appellant contends that because each of the three 

burglaries in counts 1, 4 and 5 arose from an indivisible course of 

conduct⎯a single entry into the parking garage⎯section 654 

bars multiple punishments for the three offenses. To the 

contrary, based on our determination that the judgment must be 

modified by reducing the degree of the crimes in counts 4 and 5 

from first to second degree burglary, it is clear that each burglary 

arose from a separate unlawful entry. Section 654 thus has no 

application to appellant’s sentence on counts 1, 4 and 5.

The evidence in this case established that appellant 

committed three separate burglaries, not, as he contends, an 

indivisible course of conduct based on a single entry into the 

garage. He committed the first degree burglary charged in 

count 1 when he unlawfully entered the parking garage of the 

apartment building with the intent to commit a theft and broke 

into Atkinson’s Chevy Camaro. He committed the second degree 

burglary charged in count 4 when he unlawfully broke into 

Brawner’s locked Mercedes Benz with the intent to steal. And 

when he unlawfully broke into Adams’s locked Honda Civic in the 

garage intending to commit a theft, he committed the second 

degree burglary charged in count 5.

Each of these break-ins constituted separate and divisible 

conduct: Each one was accompanied by a separate felonious 

intent, and appellant had ample opportunity to reflect after the 

first entry into the parking garage and after each entry into a 
14

vehicle. The multiple punishment prohibition under section 654 

does not apply to these facts.7

III. Appellant’s Conviction on Count 5 Is Supported 

by Substantial Evidence

We reject appellant’s challenge to the sufficiency of the 

evidence to support the conviction on count 5. Contrary to 

appellant’s argument, substantial evidence established that 

appellant committed second degree burglary in count 5 by 

breaking into the locked Honda Civic with the intent to commit 

theft.

As set forth above, appellant’s challenge requires us to 

review the whole record in the light most favorable to the 

judgment, presuming in its support every fact that a finder of fact 

could reasonably deduce from the evidence. (People v. Flores

(2020) 9 Cal.5th 371, 411.) This standard applies regardless of 

whether the prosecution relies on direct or circumstantial 

evidence. (People v. Thompson (2010) 49 Cal.4th 79, 113.) 

Indeed, “[e]ven where, as here, the evidence of guilt is largely 

circumstantial, our task is not to resolve credibility issues or 

evidentiary conflicts, nor is it to inquire whether the evidence 

might ‘ “ ‘be reasonably reconciled with the defendant’s 

innocence.’ ” ’ ” (People v. Gomez (2018) 6 Cal.5th 243, 278.)

7 We also reject appellant’s ineffective assistance of counsel 

claim with respect to this issue. Because “[d]efense counsel does 

not render ineffective assistance by declining to raise meritless 

objections” (In re A.A. (2018) 30 Cal.App.5th 596, 600; People v. 

Price (1991) 1 Cal.4th 324, 387), appellant’s trial counsel cannot 

be deemed ineffective for failing to assert the meritless argument 

that section 654 barred separate punishments for counts 1, 4 

and 5.
15

Appellant’s challenge here focuses solely on the issue of 

identity, as he claims that because he was not found in 

possession of any property stolen from the Honda, the evidence 

was insufficient to conclude he was the perpetrator. However, 

the fact that appellant was not caught with any stolen property 

from the Honda is not dispositive of the issue of the perpetrator’s 

identity. Other circumstantial evidence presented established 

the identity of the perpetrator, even if the stolen property was 

never recovered. Indeed, “[o]ne may [be] liable for burglary upon 

entry with the requisite intent to commit a felony or a theft 

(whether felony or misdemeanor), regardless of whether the 

felony or theft committed is different from that contemplated at 

the time of entry, or whether any felony or theft actually is

committed.” (Montoya, supra, 7 Cal.4th at pp. 1041–1042.)

There was overwhelming evidence in this case that 

appellant had burglarized the two other vehicles parked right 

next to the Honda on the same night the Honda’s window was 

broken and items from inside the car disappeared. At the time of 

his arrest, appellant had Atkinson’s Louis Vuitton wallet from 

the Chevy in his possession, and surveillance video from a Target 

store showed appellant attempting to use credit or debit cards 

stolen from the Chevy and the Mercedes within hours of the 

burglaries. In addition, appellant was found with a device for 

breaking car windows when he was arrested. On the strength of 

this evidence it was reasonable for the jury to conclude that 

because he had broken into the Chevy and the Mercedes with the 

intent to steal on the same night and in the same location, 

appellant had also broken into the Honda intending to commit a 

theft.
16

The fact that this evidence may also be reconciled with 

appellant’s theory that someone other than appellant may have 

burglarized the Honda that night does not warrant reversal of 

count 5. “ ‘Although it is the duty of the jury to acquit a 

defendant if it finds that circumstantial evidence is susceptible of

two interpretations, one of which suggests guilt and the other 

innocence [citations], it is the jury, not the appellate court which 

must be convinced of the defendant’s guilt beyond a reasonable 

doubt. “ ‘If the circumstances reasonably justify the trier of fact’s 

findings, the opinion of the reviewing court that the 

circumstances might also reasonably be reconciled with a 

contrary finding does not warrant a reversal of the judgment.’ ” ’ ” 

(People v. Stanley (1995) 10 Cal.4th 764, 792–793; People v. 

Cravens (2012) 53 Cal.4th 500, 508 [“The conviction shall stand 

‘unless it appears “that upon no hypothesis whatever is there 

sufficient substantial evidence to support [the conviction]” ’ ”].)
17

DISPOSITION

The judgment is modified to reduce appellant’s convictions 

in counts 4 and 5 to second degree burglary and the matter is 

remanded for resentencing. As modified, and in all other 

respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.