People v. Borgen CA4/1

California Court of Appeal · D064320 · 2014-03-19 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD245215
Trial judge: Runston G. Maino
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Patricia D. Benke (author), Alex C. McDonald, Judith L. Haller

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:44Z · confidence high

The trial court convicted Louis Charles Borgen of petty theft and burglary, denied his Marsden motions and probation, and imposed a $280 restitution fine. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to Wende/Anders procedures, finding no arguable grounds for reversal.

Ruling reviewed	Standard	The court	The model
Denial of Marsden motions “The trial court did not abuse its discretion in denying the Marsden motions.”	abuse of discretion	not reached	agree with court The court affirmed the trial court's denial of the Marsden motions, stating that neither counsel nor the trial court can compel the district attorney to make more lenient disposition offers. This aligns with the established legal principle that Marsden motions are discretionary and do not guarantee a specific plea offer from the prosecution.
Excusal of prospective juror “The trial court did not abuse its discretion in excusing a prospective juror because of the hardship posed by interruption of a prepaid family event.”	abuse of discretion	not reached	agree with court The court affirmed the trial court's decision to excuse a juror for hardship, citing People v. Tate and People v. Bell. The reasoning is sound as family obligations are a recognized basis for excusing a juror for cause under California law.
Imposition of $280 restitution fine “Thus, there was no error or abuse of discretion in imposition of the $280 restitution fine.”	abuse of discretion	not reached	agree with court The court found no ex post facto violation because the fine was below the maximum penalty in effect at the time of the offense. It also found no abuse of discretion as the record did not indicate the trial court intended to impose the statutory minimum in effect at the time of the crime. This is a correct application of ex post facto principles and sentencing discretion.
Denial of probation “In light of Borgen's record, he cannot show the trial court abused its discretion in denying him probation.”	abuse of discretion	not reached	agree with court The court affirmed the denial of probation, noting the trial court provided a valid reason based on Borgen's significant prior record. Under People v. Ferguson, a single valid reason supports a sentencing choice, and the decision is upheld unless irrational or arbitrary. The court's reasoning is consistent with California sentencing law.
Burglary entry and intent “Borgen's travel from one part of the Home Depot to the separate and secluded garden area would support a separate entry such that he would be guilty of burglary if he had the intent to steal either before he entered the Home Depot or before he went to the garden department.”	de novo	not reached	agree with court The court determined that moving from the main store to a separate, secluded garden area constituted a separate entry for burglary purposes if the intent to steal was formed before that movement. It also held that a unanimity instruction was not required regarding when the intent was formed. This is a correct application of burglary law and the unanimity instruction requirement.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the procedure for appellate review when appointed counsel finds no arguable issues, requiring the court to independently review the record for error.
relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed appellate counsel to file a brief identifying any arguable issues and to request leave to withdraw, allowing the court to review the record.
relied: Strickland v. Washington (1984) 466 U.S. 668 — Establishes the two-prong test for ineffective assistance of counsel: deficient performance and prejudice.
relied: In re Andrews (2002) 28 Cal.4th 1234 — Reinforces that tactical decisions by counsel are generally not grounds for finding ineffective assistance of counsel.
relied: People v. Ferguson (2011) 194 Cal.App.4th 1070 — A trial court's decision denying probation must be upheld unless the defendant can show the decision was irrational or arbitrary; a single valid reason supports the choice.
relied: People v. Snook (1997) 16 Cal.4th 1210 — The ex post facto prohibition prevents increases in punishment beyond what was prescribed at the time of the offense.
relied: People v. Tate (2010) 49 Cal.4th 635 — Excusing a prospective juror for hardship is reviewed for abuse of discretion.
relied: People v. Bell (1998) 61 Cal.App.4th 282 — Family obligations support excusing a prospective juror for cause.
relied: People v. Sparks (2002) 28 Cal.4th 71 — Supports the concept that movement within a building can constitute a separate entry for burglary if the area is separate and secluded.
relied: In re M.A. (2012) 209 Cal.App.4th 317 — Supports the concept that movement within a building can constitute a separate entry for burglary if the area is separate and secluded.
relied: People v. Mackabee (1989) 214 Cal.App.3d 1250 — Supports the concept that movement within a building can constitute a separate entry for burglary if the area is separate and secluded.
relied: People v. Taylor (2010) 48 Cal.4th 574 — A unanimity instruction is not required when the evidence supports the conclusion that the defendant committed the crime in a single continuous act or when the alternative theories are not mutually exclusive.
relied: People v. Russo (2001) 25 Cal.4th 1124 — In a conspiracy case, no unanimity is required as to which overt act the conspirators committed.

The appellate opinion: sound — The opinion is sound because it correctly applies the Wende/Anders review standard and uses appropriate authorities to address each potential issue raised by counsel. The court's analysis of the burglary entry, probation denial, and restitution fine is consistent with established California law.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

A San Diego jury convicted Louis Borgen of petty theft and burglary after he filled a bucket with tools at a Home Depot, moved them to a backpack in the garden department, and left without paying; the trial court denied two Marsden motions, excused a juror for hardship, denied probation, imposed two 2-year local terms (one stayed), and a $280 restitution fine. On a Wende/Anders appeal in which counsel raised eight possible issues and Borgen filed no supplemental brief, the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.

Ruling reviewed	Standard	The court	The model
Trial counsel's failure to assert an intoxication defense and withdrawal of an attempted-theft lesser-included instruction did not constitute ineffective assistance “we note both areas of potential criticism were arguable tactical decisions by counsel and thus not grounds for disturbing Borgen's conviction.”	de novo	correct	agree with court Under Strickland and Andrews, tactical choices are presumptively reasonable, and the record described supports that view: Borgen testified he intended to pay by debit card, an all-or-nothing defense inconsistent with both intoxication and an attempt theory, and the goods had already been carried out of the store so an attempt instruction had little evidentiary footing. The opinion's treatment is conclusory but the authorities fit.
Denial of probation based on defendant's nine prior convictions including at least three felonies “In light of Borgen's record, he cannot show the trial court abused its discretion in denying him probation.”	abuse of discretion	correct	agree with court The trial court expressly relied on a substantial prior record and found no unusual case warranting probation for a defendant with multiple prior felonies; that is a valid, record-supported reason and a single valid reason sustains the choice under Ferguson.
Imposition of a $280 restitution fine under Penal Code section 1202.4 for an August 2012 offense when the statutory minimum at that time was $240 “Thus, there was no error or abuse of discretion in imposition of the $280 restitution fine.”	mixed	correct	agree with court Because the maximum fine at the time of the offense was $10,000, a $280 fine was within the range authorized when the crime was committed, so under Snook there is no ex post facto increase in punishment. The court also reasonably found nothing in the record showing the trial court mistakenly believed it was imposing a mandatory minimum, which is the only route to a discretionary error.
Denial of two Marsden motions grounded on dissatisfaction with the prosecution's plea offers “As the trial court explained at the hearings, neither counsel nor the trial court can compel the district attorney to make more lenient disposition offers.”	abuse of discretion	correct	agree with court Marsden relief requires a showing of inadequate representation or an irreconcilable conflict; dissatisfaction with the prosecutor's offers is not a deficiency attributable to appointed counsel, so denial was within the trial court's discretion.
Excusal of a prospective juror for hardship because of a prepaid family event “The trial court did not abuse its discretion in excusing a prospective juror because of the hardship posed by interruption of a prepaid family event.”	abuse of discretion	correct	agree with court Tate confirms hardship excusals are reviewed deferentially and Bell recognizes family obligations as a legitimate hardship ground; nothing in the opinion suggests the excusal was pretextual or prejudicial.
Burglary conviction sustainable on either entry into the store or movement into the garden department as a separate entry “Borgen's travel from one part of the Home Depot to the separate and secluded garden area would support a separate entry such that he would be guilty of burglary”	de novo	correct	unsure Sparks addressed entry into a bedroom of a residence, and Mackabee and M.A. involved spaces not open to the public; whether walking into a garden department that the public may freely enter is a 'separate entry' under section 459 was unsettled in 2014 and later case law (People v. Garcia (2016) 62 Cal.4th 1116) tied interior-room entries to a separate possessory interest or expectation of protection from intrusion. The court's extension of the room-entry doctrine to an open retail department is doubtful, but any error would be harmless because the guards saw Borgen loading tools without checking prices immediately upon entering and he admitted he planned to steal from the outset, so the evidence of intent at the initial entry was overwhelming.
No unanimity instruction was required as to when Borgen formed the intent to steal “No unanimity instruction was needed with respect to whether the intent to steal arose before Borgen entered the store or after he entered the store but before he went to the garden department.”	de novo	correct	unsure Russo distinguishes disagreement about the legal theory of a single crime (no unanimity needed) from disagreement about which of several discrete acts was the crime (unanimity needed); having just described the garden-department movement as a 'separate entry,' the court's characterization of the two entries as mere theories is in some tension with Russo. A continuous-course-of-conduct rationale or harmless-error analysis would have supported the result more squarely, and on this record the result is defensible because the evidence of intent before the initial entry was strong.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error.
relied: Anders v. California (1967) 386 U.S. 738 — Counsel may file a brief identifying possible but non-arguable issues to assist the court's independent review.
relied: People v. Marsden (1970) 2 Cal.3d 118 — A defendant seeking substitution of appointed counsel must be allowed to state the reasons, and relief requires a showing of inadequate representation or irreconcilable conflict.
relied: Strickland v. Washington (1984) 466 U.S. 668 — Ineffective assistance requires deficient performance and prejudice; counsel's tactical decisions are presumed reasonable.
relied: In re Andrews (2002) 28 Cal.4th 1234 — Reviewing courts defer to counsel's reasonable tactical decisions in assessing ineffective assistance claims.
relied: People v. Ferguson (2011) 194 Cal.App.4th 1070 — A denial of probation is upheld unless the defendant shows it was irrational or arbitrary.
relied: People v. Snook (1997) 16 Cal.4th 1210 — The ex post facto clause bars increases in punishment beyond what was prescribed when the offense was committed.
relied: People v. Tate (2010) 49 Cal.4th 635 — Excusal of a prospective juror for hardship is reviewed for abuse of discretion.
relied: People v. Bell (1998) 61 Cal.App.4th 282 — Family obligations may support excusing a prospective juror for hardship.
relied: People v. Sparks (2002) 28 Cal.4th 71 — Entry into a room within a structure with felonious intent constitutes a burglary entry under section 459.
relied: In re M.A. (2012) 209 Cal.App.4th 317 — Entry into a separate area within a commercial building can support a burglary conviction.
relied: People v. Mackabee (1989) 214 Cal.App.3d 1250 — Entry into an enclosed interior area of a business constitutes a burglary entry.
relied: People v. Taylor (2010) 48 Cal.4th 574 — No unanimity instruction is required where jurors may disagree only about the theory supporting a single burglary.
relied: People v. Russo (2001) 25 Cal.4th 1124 — Unanimity is required when a count could rest on discrete criminal events but not when jurors merely disagree on the theory or act underlying one discrete crime.

The appellate opinion: sound with gaps — The opinion follows Wende and Kelly-style practice by reciting the facts and the eight issues counsel flagged, and its treatment of the ineffective-assistance, probation, restitution-fine, Marsden, and juror-excusal questions is supported by the cited authorities. Its two-paragraph discussion of the garden department as a 'separate entry' stretches residential and enclosed-space cases to an open retail area and then treats the two entries as mere theories for unanimity purposes, a tension it does not address, though the result is defensible given the overwhelming evidence of intent at initial entry.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 3/19/14 P. v. Borgen CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064320

Plaintiff and Respondent, v. (Super. Ct. No. SCD245215)

LOUIS CHARLES BORGEN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed.

Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

In this case, which we review under the procedures set forth in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), we affirm the appellant's theft and burglary conviction. FACTUAL AND PROCEDURAL BACKGROUND On August 8, 2012, defendant and appellant Louis Charles Borgen was apprehended outside a Home Depot store by two security guards employed by the store.

The guards had observed Borgen on a security camera when he entered the store with a companion and went to a display of tools. The guards saw Borgen take tools from the display and put them in an orange Home Depot bucket without looking at the prices.

The guards then watched Borgen and his companion go to the more secluded garden department of the store. At that point, one of the guards was following Borgen and directly observing him.

In the garden department, the guard saw Borgen take the tools from the bucket and put them in his companion's backpack. The guard then observed Borgen and his companion engage in what looked like an argument. The apparent argument ended when the companion gave Borgen the backpack and walked back into the main part of the store.

Borgen left the store through an exit in the garden department and was apprehended by the two security guards. Later, he told the guards that he stole the tools because he knew people who wanted them and would buy them from him. Borgen also told the guards that initially he only planned to steal a few items but, when people started watching him, he decided to steal much more. Borgen told the guards that times were tough and that he needed to steal to make ends meet.

2 Prior to trial, Borgen made two Marsden1 motions, which the trial court denied.

During jury voir dire, the trial court excused one juror who had a prepaid event with a member of his family.

At trial, Borgen testified that when he went into the store he planned to buy a number of items, including some cleaning supplies, and pay for them with a debit card.

A jury convicted Borgen of one count of petty theft and one count of burglary.

Borgen admitted three prior petty theft convictions. The trial court sentenced Borgen to two 2-year terms of local time (Pen. Code,2 § 1170, subd. (h)(1) & (5)), stayed one of the terms and imposed a restitution fine of $280.

DISCUSSION

Borgen's appointed appellate counsel has filed a brief setting forth the underlying facts and procedural history and presenting no argument for reversal but asking this court to review the record for error in accordance with Wende. Pursuant to Anders, counsel refers to the following possible, but not arguable, issues:

1. Was counsel ineffective in failing to assert an intoxication defense?

2. Was counsel ineffective in withdrawing an instruction on attempted theft as a lesser included offense of petty theft?

3. Did the trial court abuse its discretion in denying probation?

4. Did the trial court err in imposing the $280 restitution fine?

1 See People v. Marsden (1970) 2 Cal.3d 118, 123-126.

2 All further statutory references are to the Penal Code unless otherwise indicated. 3 5. Did the trial court err in denying Borgen's Marsden motions?

6. Did the trial court err in excusing a juror?

7. If Borgen did not form an intent to steal until after he was at the tool display, did Borgen's travel from the tool display to the garden area of the store constitute a second entry?

8. Was a unanimity instruction required with respect to when Borgen formed an intent to steal?

We granted Borgen permission to file a brief on his own behalf, and he has not done so. We have reviewed the record—and, in particular, the issues identified by counsel—and find no arguable grounds for reversal.

With respect to whether counsel was ineffective at trial, we note both areas of potential criticism were arguable tactical decisions by counsel and thus not grounds for disturbing Borgen's conviction. (See Strickland v. Washington (1984) 466 U.S. 668, 689;

In re Andrews (2002) 28 Cal.4th 1234, 1253.)

In denying probation, the trial court stated: "[Y]ou have a significant prior record.

You have nine prior convictions and at least three felony convictions. And I just can't find this to be an unusual case to grant you probation." A trial court's decision denying probation must be upheld unless the defendant can show the decision was irrational or arbitrary. (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091-1092.) A single valid reason will support a sentencing choice. In light of Borgen's record, he cannot show the trial court abused its discretion in denying him probation.

Because at the time Borgen committed the thefts he was subject to a $10,000 fine 4 under section 1202.4, imposition of a fine above the $240 minimum required at the time the offense was committed, but below the existing maximum, did not offend the guarantee against imposition of an ex post facto punishment. (See People v. Snook (1997) 16 Cal.4th 1210, 1221 [ex post facto prohibition prevents increases in punishment beyond what was prescribed at time of offense].) Moreover, there is nothing in the record that indicates the trial court intended to impose the statutory minimum in effect at the time of the crimes; rather, it is quite possible the trial court determined the minimum in effect at the time of sentencing was more appropriate. Thus, there was no error or abuse of discretion in imposition of the $280 restitution fine.

We have reviewed the transcripts of both Marsden hearings at which Borgen complained about his dissatisfaction with the offers being made by the district attorney.

As the trial court explained at the hearings, neither counsel nor the trial court can compel the district attorney to make more lenient disposition offers. The trial court did not abuse its discretion in denying the Marsden motions.

The trial court did not abuse its discretion in excusing a prospective juror because of the hardship posed by interruption of a prepaid family event. (See People v. Tate (2010) 49 Cal.4th 635, 663 [excusing prospective juror for hardship reviewed for abuse of discretion]; People v. Bell (1998) 61 Cal.App.4th 282, 287 [family obligations support excusing prospective juror].)

Borgen's travel from one part of the Home Depot to the separate and secluded garden area would support a separate entry such that he would be guilty of burglary if he had the intent to steal either before he entered the Home Depot or before he went to the 5 garden department. (See People v. Sparks (2002) 28 Cal.4th 71, 73; In re M.A. (2012)

209 Cal.App.4th 317, 321; People v. Mackabee (1989) 214 Cal.App.3d 1250, 1257- 1258.) No unanimity instruction was needed with respect to whether the intent to steal arose before Borgen entered the store or after he entered the store but before he went to the garden department. (People v. Taylor (2010) 48 Cal.4th 574, 627-628; see also People v. Russo (2001) 25 Cal.4th 1124, 1135-1136 [in conspiracy case no unanimity required as to which overt act conspirators committed].)

We find Borgen was adequately represented by counsel on appeal.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

McDONALD, J.

Cites, in this corpus

People v. M.A. No. D060768 · 2012-09-13
People v. Ferguson No. G043190 · 2011-04-28
People v. Tate S031641 · 2010-07-08
People v. Taylor S062562 · 2010-04-15
In Re Andrews S017657 · 2002-08-26
People v. Sparks S098290 · 2002-06-19
People v. Russo S088368 · 2001-06-28
People v. Bell D027299 · 1998-02-03
People v. Snook No. S056760 · 1997-12-18
People v. MacKabee C004253 · 1989-10-18
People v. Wende Crim. 20851 · 1979-10-12
People v. Marsden Crim. 14119 · 1970-02-26