People v. Blair CA3, C079867

On January 3, 2015, homeowner Yolanda Arde returned to her residence to find the fence kicked in, the front key not working, vandalism, and items missing; she encountered a woman and later the defendant Maurice Blair was found hiding in a bathroom.
Police recovered Arde’s ID, bracelet, pocketknife, and MP3 player on Blair; the rear sliding glass door lock had been tampered with.
Blair was charged with first degree residential burglary (Pen. Code § 459); the information alleged entry of an inhabited dwelling with intent to commit larceny and other felonies.
A jury convicted Blair of first degree burglary and the trial court found true a prior 1997 first degree burglary strike; Blair was sentenced to the middle term of four years, doubled to eight years under the Three Strikes law.
Blair moved to strike his prior strike conviction under Romero; the trial court denied the motion after considering his criminal history and submitted letters; Blair appealed, raising three principal issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether jury must be instructed that knowledge the dwelling was inhabited is required for first degree burglary	People: No requirement; statutory elements do not include knowledge of habitation	Blair: Jury should be told prosecution must prove he knew the residence was inhabited for first degree burglary	Court: No error; habitation knowledge is not an element of burglary (Guthrie)
Whether trespass is a lesser included offense requiring instruction	People: The information alleging "unlawful entry" with intent to commit theft does not necessarily encompass trespass	Blair: Under the accusatory pleadings test, the information here includes trespass so instruction should be given	Court: No; under Lohbauer and Birks, alleging "unlawful entry" is not equivalent to alleging entry without consent, so trespass is not a lesser included offense here
Whether trial court abused discretion in denying Romero motion to strike prior strike	People: Court considered offense seriousness and long criminal history and properly exercised discretion to deny	Blair: Prior strike is remote; current offense mitigated by lack of physical injury and claimed belief he had permission; urges leniency	Court: No abuse of discretion; extensive and repeated criminal history shows defendant falls within Three Strikes scheme

People v. Guthrie, 144 Cal.App.3d 832 (1983) (no requirement that defendant know dwelling is inhabited to commit burglary)
People v. Lohbauer, 29 Cal.3d 364 (1981) (allegation of entry with intent to steal does not necessarily include criminal trespass)
People v. Birks, 19 Cal.4th 108 (1998) (accusatory language alleging "unlawful entry" with intent to commit larceny does not necessarily include trespass)
People v. Romero, 13 Cal.4th 497 (1996) (trial court discretion under § 1385 to strike prior serious/violent felony convictions)
People v. Carmony, 33 Cal.4th 367 (2004) (standard of appellate review for denial of Romero motion is abuse of discretion)
People v. Strong, 87 Cal.App.4th 328 (2001) (career criminals rarely fall outside the spirit of Three Strikes)