Defendant who broke into secure subterranean garage of apartment building, where he was confronted by the apartment manager, committed first degree burglary with person present. A jury convicted defendant of first degree burglary (Pen. Code, § 459) with a “person present” finding (Pen. Code, § 667.5, subd. (c)(21)), rendering the offense a violent felony. The trial court found alleged priors true and sentenced defendant to prison. On appeal defendant challenged the “person present” finding as to the burglary. Held: Affirmed. Penal Code section 667.5, subdivision (c)(21) includes in the list of violent felonies any first degree burglary where it is charged and proven that another person, other than an accomplice, was present in the residence during the commission of the crime. Here, the apartment units and the subterranean garage shared a common roof and were both part of an integrated structure. Defendant was confronted by the apartment manager while still inside the garage. The burglary qualified as a violent felony because of the increased risk of violence to the manager who was present during the crime.

The instruction given regarding the “person-present” finding was not defective for failing to require a finding the garage is a part of the residence. Defendant claimed the special instruction on the “person-present” finding was defective because it did not require the jury to determine the subterranean garage was an integral part of the residence. However, that element is set forth in the burglary instruction given, which states the garage is part of the residence if it is functionally interconnected with and contiguous to other portions of the dwelling. Defendant did not object to the instruction or request amplification of it and thereby forfeited any error. Furthermore, any alleged error in the instruction was harmless by any standard.

The trial court did not violate defendant’s Sixth Amendment right to represent himself when it denied his request for advisory counsel. Several weeks after the court granted defendant’s Faretta motion, it denied his request for advisory counsel. A defendant who elects to represent himself has no constitutional or other right to advisory counsel; that decision is within the court’s discretion. There was substantial evidence defendant was capable of representing himself without advisory counsel. He obtained funds for an investigator, hired an expert and filed a number of motions. It is not reasonably probable he would have obtained a more favorable result had the trial court provided him with advisory counsel.

Defendant’s statements were not obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436. Defendant claimed his statements to the police were the product of coercion. However, he forfeited this issue by failing to object to the statements on this ground below. He also argued he was too drunk at the time of the police interview to knowingly waive his Miranda rights. The trial court found he was sober enough to flee the scene of the crime on his bike and to waive his Miranda rights. There is nothing in the record that reflects that defendant did not understand his rights and the questions posed to him. Intoxication alone does not render a confession involuntary. Further, defendant’s long criminal history reflects he has substantial knowledge of the criminal justice system. Even assuming the trial court should have excluded his statements, any error is harmless beyond a reasonable doubt.

The prosecutor did not commit misconduct by using appellant’s statements to police to impeach his trial testimony. During trial, the prosecution stated it would not be eliciting testimony from police regarding defendant’s confession. Defendant took the stand and testified he had no recollection of what happened and did not remember talking to the police. At that point the prosecutor used defendant’s statements to impeach him. This was not misconduct. A prior inconsistent statement is admissible where the witness professes to have no recollection of the underlying events or of even having made the statements. No promise was made to induce defendant to testify, unlike the defendant in People v. Quartermain (1997) 16 Cal.4th 600, who gave up his right to remain silent and testified only after the prosecution made such a promise. “When a confession is elicited in violation of Miranda, the confession may be used for impeachment purposes where the defendant’s testimony conflicts with his earlier statements.” In any event, any error was harmless given the overwhelming evidence.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B262455.PDF