P. v. Hendrix

Filed 10/19/20; See dissenting opinion; THE SUPREME COURT OF CALIFORNIA HAS GRANTED
REVIEW
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
ISAIAH HENDRIX,
Defendant and Appellant.
2d Crim. No. B298952
(Super. Ct. Nos. 2018037331,
2017025915)
(Ventura County)
Isaiah Hendrix appeals his conviction, by jury, of first
degree burglary. (Pen. Code, §§ 459, 460.)1 The trial court
sentenced appellant, a second strike offender, to nine years in
state prison.2 Appellant was also sentenced on a separate
probation violation matter to a consecutive term of one year. He
contends the trial court erred when it instructed the jury on
1 All further statutory references are to the Penal Code,
unless otherwise stated.
2 The sentence is comprised of the low term of two years,
doubled under the Three Strikes law (§§ 667, subd. (e)(1),
1170.12, subd. (b), (c)(1)), plus a five year enhancement for a prior
serious felony conviction. (§ 667, subd. (a)(1).)

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mistake of fact. He further contends the trial court abused its
discretion when it “failed” to strike his prior robbery conviction in
the interest of justice (§ 1385) and that his sentence constitutes
cruel and unusual punishment under both the state and federal
constitutions. We affirm.
Facts and Proceedings
July 2017 Robbery (case no. 2017025915). Appellant was
stopped by a Costco employee after he tried to enter the Oxnard
store without a membership card. He said his mother was inside
and asked to be escorted to her. The employee went with him as
he walked through the store, supposedly looking for his mother.
When they reached the alcohol section, appellant put a bottle of
tequila into his shorts. He left the store with the bottle in his
shorts and without paying for it. When confronted, appellant
threatened to harm the Costco employee. He was arrested for
robbery.
In October 2017, appellant’s attorney declared a doubt as to
his competency to stand trial. After evaluation, he was
committed to the Department of State Hospitals for treatment.
In August 2018, appellant was found competent. He pleaded
guilty to one count of second degree robbery. On September 24,
2018, the trial court granted appellant 36 months’ formal
probation on the condition that he serve one year in county jail
with credit for time served. He was then released from custody.
October 2018 Burglary (case no. 2018037331). At 7 a.m. on
October 28, 2018, appellant knocked loudly on the front door and
rang the doorbell of a house on Indiana Drive in Oxnard. Artrose
Tuano, who lived in the house with his parents was at home and
watched the video being recorded by his home security system.
He saw appellant walk through a side gate and into the back

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yard. Appellant tried to open a side door that led to the garage.
He also opened a screen door and then tried to force open a
sliding glass door leading into the house. When he could not get
in the house, appellant sat down on a bench in the backyard.
Tuano called the police.
Police officers arrived and found appellant sitting in the
backyard. Appellant said that he was there to visit his cousin
Trevor who lived in the house, but nobody answered the door. He
said a friend told him that Trevor had moved to this new house.
As luck would have it, Oxnard Police Officer Vines knew Trevor
because they went to high school together and, Officer Vines also
knew that Trevor had not moved recently. He was still living
several blocks away. Appellant was arrested for residential
burglary.
While appellant was in custody awaiting trial, he had
recorded telephone conversations with his mother and one of his
uncles. In a November 2018 call, appellant told his mother that
he needed a witness who could “speak up for me or something
and say I gave him the wrong address . . . [a]nd then that’s why
he knocked on the door and did what he did because he thought it
was his cousin Trevor’s house.” Two days later, he asked his
mother if she had the situation “under control or do I need
somebody – do I need to call one my friends to do it for me?” She
replied, “To do what?” Appellant said he needed the person “to
say that they gave me the wrong address and everything.”
Appellant’s mother refused to get involved. “Oh. No. You need to
do – one of your friends [to] do that crap. I ain’t getting nobody
caught up or doing any type of drama or lying.”
About a week later, appellant spoke with his Uncle John on
a recorded telephone call. John reminded appellant that

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authorities recorded every call. Appellant said he knew, but “it’s
not like they really listen.” Uncle John disagreed, “Yeah, they
listen, dude. They record everything you say.” He also chided
appellant for “all that crazy shit you be talking and doing and
then you’re running around breaking in people’s house.” He
asked what appellant was doing, and appellant answered, “I don’t
know.”
Appellant did not testify at trial. The defense rested
without presenting evidence.
Discussion
Instructional Error
Appellant requested that the trial court instruct the jury on
mistake of fact as outlined in CALCRIM No. 3406. The
prosecutor requested that “all the ‘reasonably’ brackets get
included” in the instruction given to the jury. Appellant’s counsel
“submitted” on that issue. The trial court erroneously included
the bracketed language in the instruction based upon the
erroneous advice of the prosecutor. Everyone should have read
the “Bench Notes” which says to not use “reasonable” for a
specific intent crime.
The trial court instructed the jury as follows: “The
defendant is not guilty of burglary if he did not have the intent or
mental state required to commit the crime because he
[reasonably] did not know a fact or [reasonably and] mistakenly
believed a fact. [¶] If the defendant's conduct would have been
lawful under the facts as he [reasonably] believed them to be, he
did not commit burglary. [¶] If you find that the defendant
believed that defendant’s cousin Trevor resided at the home [and
if you find that belief was reasonable], he did not have the
specific intent or mental state required for burglary. [¶] If you

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have a reasonable doubt about whether the defendant had the
specific intent or mental state required for burglary, you must
find him not guilty of that crime.” (CALCRIM No. 3406.)
A good faith mistake of fact “‘is a defense when it negates a
required mental element of the crime . . . .’” (People v. Navarro
(1979) 99 Cal.App.3d Supp. 1, 10 (Navarro).) The mistake of fact
need not be objectively reasonable. It need only be subjectively
believed.
In Navarro, for example, the defendant was charged with
grand theft for taking four wooden beams from a construction
site. There was, however, evidence that the defendant believed
the site had been abandoned and that the owner had no objection
to his taking the beams. The trial court instructed the jury that
the defendant’s mistake of fact was a defense to theft only if it
was both honest and objectively reasonable. Navarro concluded
the trial court erred. “It is true that if the jury thought the
defendant's belief to be unreasonable, it might infer that he did
not in good faith hold such belief. If, however, it concluded that
defendant in good faith believed he had the right to take the
beams, even though such belief was unreasonable as measured
by the objective standard of a hypothetical reasonable man,
defendant was entitled to an acquittal since the specific intent
required to be proved as an element of the offense had not been
established.” (Id. at p. 11, fns. omitted; see also People v Russell
(2006) 144 Cal.App.4th 1415, 1426-1427 (Russell), disapproved on
other grounds in People v. Covarrubias (2016) 1 Cal.5th 838, 874,
fn. 14.)
Here, appellant told police that he entered the Tuano
backyard and tried to force entries believing this to be his cousin
Trevor’s house. If appellant subjectively believed that he was at

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Trevor’s house, the jury could, in theory, have found that he did
not have the mental state required for burglary. The trial court
erred when it instructed the jury that such a belief had to be
objectively reasonable.
Harmless Error
The instructional error was harmless. There is no
reasonable probability appellant would have obtained a more
favorable result had it not been made. (Cal. Const. Art. 6, § 13;
People v. Zamani (2010) 183 Cal.App.4th 854, 866; see also
Russell, supra, 144 Cal.App.4th 1415.) Appellant told the
responding officers that he believed Trevor lived at the Tuano
house because a friend told him Trevor had moved. That was it.
There was no other evidence from which the jury could have
concluded appellant subjectively believed that statement.
In conducting a harmless error analysis, we look to the
entire record. Based upon the paucity of evidence, appellant’s
“mistake” did not make sense to the jury. It does not cohere on
appeal either. Officer Vines testified Trevor had not moved to the
house. Appellant was the only person who said that he thought
that Trevor had moved to the victim’s residence.
We must observe that the story appellant told the police
was a fabrication. No cousin who wanted to visit a relative would
make multiple forcible attempts to enter the house and a garage.
This is the method of operation for a residential burglar. It is not
the method of operation for a family visit. It must be emphasized
that appellant did not testify that he subjectively believed cousin
Trevor lived at the scene of the burglary. He did not call as a
witness the person who allegedly told him that cousin Trevor
moved to the house. His name is unknown. His description is
unknown. His whereabouts are unknown. There is a disconnect

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here. Even if appellant subjectively believed that cousin Trevor
lived at the house, that did not give him the right to attempt
entry, multiple times, by force. Would a person who subjectively
believes that a cousin lives at a residence also think that the
cousin would allow forcible entry for a social visit?
Appellant actively solicited his mother to procure a witness
who would so testify that he told appellant that cousin Trevor
had moved to the house. She flatly refused. When Uncle John
accused him of committing the residential burglary and asked
him what he was doing, appellant replied, “I don’t know.” This is
not the comment of a person who subjectively believed that
cousin Trevor lived in the house. There is no miscarriage of
justice in this case.3
Claimed
Sentencing Error
The trial court used appellant’s July 2017 robbery
conviction as a first “strike” and as a five-year prior serious
3 We opine that appellant, obviously, has some mental
impairment. There is no evidence of what he was thinking while
sitting in the backyard. He could have been pondering on the
whereabouts of cousin Trevor. Or maybe he was pondering on his
next attempted point of entry. But we do not believe that a
friend told him the cousin Trevor had moved to the victim’s
house. It seems much more likely, consistent with the
prosecutor’s theory, that appellant made up this excuse to avoid
arrest. Even his own mother would not help secure a
corroborating witness. She did not want to help him in his
“lying.” (Ante, p. 3.)
So, the police did not believe him. The prosecutor did not
believe him. His mother did not believe him. The jury did not
believe him. The trial court did not believe him.

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felony conviction for purposes of sentencing. Appellant contends
the trial court abused its discretion. We disagree.
In determining whether a prior serious felony should be
dismissed for sentencing purposes, “the court in question must
consider whether, in light of the nature and circumstances of his
present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s
spirit, in whole or in part, and hence should be treated as though
he had not previously been convicted of one or more serious
and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th
148, 161 (Williams).) We review the trial court’s refusal to strike
a prior conviction for abuse of discretion. “[A] trial court does not
abuse its discretion unless its decision is so irrational or arbitrary
that no reasonable person could agree with it.” (People v.
Carmony (2004) 33 Cal.4th 367, 377.)
Appellant’s adult criminal history includes six prior theft
and robbery convictions. He has never successfully completed
probation. The current offense is the serious felony of residential
burglary, which appellant committed while a resident was inside
the home. Appellant appears to have some mental impairment
but presents no other mitigating circumstances. This is not an
extraordinary case where appellant must be “deemed outside the
. . . spirit” of the Three Strikes law. (Williams, supra, 17 Cal.4th
at p. 161.) There was no abuse of discretion.
Claimed
Cruel and Unusual Punishment.
Appellant contends his 10-year sentence violates the
federal and state constitutional prohibitions against cruel and
unusual punishment. We disagree.

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In non-capital cases, the Eighth Amendment to the federal
Constitution contains a “narrow proportionality principle,” which
prohibits the imposition of a sentence that is “‘grossly
disproportionate to the severity of the crime.’” (Ewing v.
California (2003) 538 U.S. 11, 20-21.) In determining whether a
lengthy sentence imposed under a recidivist sentencing statute is
unconstitutionally excessive or disproportionate, a reviewing
court determines whether the challenged sentence constitutes
cruel and unusual punishment “as applied to the specific
circumstances involved in the case at issue.” (In re Coley (2012)
55 Cal.4th 524, 553 [emphasis original].)
Appellant’s current felony is first degree burglary, a serious
felony under section 1192.7. The sentencing range for this
offense is two, four or six years, reflecting our Legislature’s
assessment of its severity. (§ 461, subd. (a).) He committed the
burglary about one month after his release from custody for his
prior robbery conviction. The trial court imposed a term of nine
years in state prison by selecting the low term of two years for
the burglary, doubling that term based on appellant’s prior
“strike,” and then adding a five-year enhancement term for his
prior serious felony conviction. This sentence is well within the
maximum statutorily authorized term for a second-strike
burglary and it bears a rational relationship to the anti-recidivist
purposes of the Three Strikes law. We conclude the sentence
does not violate the Eighth Amendment. (In re Coley, supra, 55
Cal.4th at pp. 558, 561-562.)
Our state constitution also prohibits cruel or unusual
punishments. A sentence that is within the statutorily
authorized term for an offense may be said to violate the
California Constitution only where the punishment is so

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disproportionate “that it shocks the conscience and offends
fundamental notions of human dignity.” (In re Lynch (1972) 8
Cal.3d 410, 424.) Here, appellant has a history of committing
theft and robbery. His current offense is even a more serious
offense because he intruded into a family home while a resident
was inside. He committed this offense only about one month
after being released from custody. Given appellant’s status as a
recidivist whose offenses are growing more serious, the sentence
imposed does not shock the conscience or offend fundamental
notions of human dignity. (See, e.g., People v. Cooper (1996) 43
Cal.App.4th 815, 825-826.)
CONCLUSION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, Acting P. J.
I concur:
PERREN, J.

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TANGEMAN, J., Dissenting:
I respectfully dissent. The majority conclude that the trial
court erred in instructing the jury that appellant’s mistaken
belief that he was at his cousin’s house had to be “reasonable” to
constitute a defense, but also conclude that the legal error was
“harmless.” Given the facts of this case, that second conclusion is
unwarranted.
The proper test for determining whether misinstruction on
an element of the offense is prejudicial is the “harmless beyond a
reasonable doubt” standard of Chapman v. California (1967) 386
U.S. 18, 24. (People v. Hudson (2006) 38 Cal.4th 1002, 1013.)
The Chapman test has been described as a “stricter” test than the
reasonable probability test of People v. Watson (1956) 46 Cal.2d
818. (People v. Dominguez (2006) 39 Cal.4th 1141, 1160.)
Appellant has a history of mental illness. Indeed, he was
found not competent to stand trial in a prior case and was
committed to the Department of State Hospitals for almost one
full year for mental health treatment. He was released from that
commitment only two months before this incident occurred. This
is not an insignificant fact, although it is glossed over in the
majority opinion.
Moreover, the underlying facts of this case readily show
that appellant was not of ‘sound mind’ on October 28, 2018. After
loudly knocking and ringing the doorbell, appellant walked
around the house, tried to force open a door and, when
unsuccessful, simply sat down in the backyard, and waited.
Waited for what? His cousin? Or, as the majority apparently
posits, for the police to arrive to arrest him (which conclusion is
inconsistent with his surprise at seeing the police). He had no

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burglary tools when arrested and made no further efforts to enter
the house. He simply sat down and waited.
The majority disregards this evidence because appellant’s
cousin lived several blocks away, on the “opposite side of Pacifica
High School.” Apparently this proves that appellant was not
mistaken at all, because he couldn’t have been confused or lost.
This logic fails me.
The majority also seizes upon appellant’s post-arrest call to
his mother, while in custody once again soon after his discharge
from the Department of State Hospitals, pleading with her to lie
for him. Again, apparently this proves (beyond a reasonable
doubt) that appellant knew all along that he was not at his
cousin’s house. Or does it? Maybe it shows only how desperate
he was to get out of custody.
Undeterred by these troubling facts and the stringent
requirement that we reverse unless convinced that any error was
“harmless beyond a reasonable doubt,” the majority substitutes
its own judgment, based on a cold record, about appellant’s
credibility and true intentions. Given appellant’s recent mental
health history and inexplicable conduct on the day in question, I
cannot in good conscience conclude that no reasonable juror
might have reached a different result if properly instructed.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.

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Paul W. Baelly, Judge
Superior Court County of Ventura
______________________________
Adrian Dresel-Velasquez, 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, Idan Ivri, Acting Supervising
Deputy Attorney General, John Yang, Deputy Attorney General,
for Plaintiff and Respondent.

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