Opinion
E067851
09-07-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAY BURDICK, Defendant and Appellant.
Steven L. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew C. Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR026645) OPINION APPEAL from the Superior Court of San Bernardino County. Victor R. Stull, Judge. Affirmed. Steven L. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew C. Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
On June 11, 2016, defendant and appellant Michael Burdick was loitering around the front of the Apple Valley Vape Shop. Dwaine Wooley parked his car in front of the shop and went inside. Wooley left the driver's side window partially cracked open for ventilation. Defendant put his entire arm through the window to unlock the door. He unlocked the door and opened it. Wooley ran out of the store and attacked defendant.
Defendant was found guilty of one count of second degree burglary (Pen. Code, § 459). In a bifurcated proceeding, after defendant waived his right to a jury trial, the trial court found that defendant had suffered one prior serious or violent felony conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served two prior prison terms (§ 667.5, subd. (b)). He was sentenced to eight years to be served in state prison.
The jury found defendant not guilty of assault with a deadly weapon (§ 245, subd. (a)(1)) and making criminal threats (§ 422).
All further statutory references are to the Penal Code unless otherwise indicated. --------
Defendant makes the following claims on appeal: (1) insufficient evidence was presented to support his conviction of second degree burglary; (2) the trial court erred by failing to instruct the jury on the lesser offense of attempted second degree burglary; (3) the trial court erred and violated his federal constitutional rights by failing to give an instruction that entry into a car does not occur until the suspect unlocks the door and then enters the passenger compartment of the vehicle; and (4) cumulative error warrants reversal of his conviction.
FACTUAL AND PROCEDURAL HISTORY
On June 11, 2016, Wooley was shopping at the Apple Valley Vape Shop (the Shop). The Shop was located in a strip mall near several businesses. His car was parked in front of the shop and was locked. The driver's side window was cracked open a few inches for ventilation. Wooley helped out at the Shop and was sitting at the counter with Joshua Frizzelle, who worked at the Shop.
Wooley's friend, Lillian Sayegh, came into the Shop and told him and Frizzelle that a suspicious character was walking around outside. Wooley looked outside and saw defendant sitting in front of the Shop. Wooley went back to what he was doing but then someone told him that defendant had his hand inside of his car. Wooley looked outside. Defendant was at the driver's side of his car. The driver's side door was open. Wooley ran outside and yelled "stop." Wooley pushed defendant and defendant hit him in the head. They began hitting each other.
During the fight, defendant punched the passenger's side window on Wooley's car and it shattered. Wooley had a pocketknife on the front seat in his car. Defendant reached in and grabbed the pocketknife out of the car. Defendant opened the knife. Defendant came toward Wooley with the knife and told Wooley that he was going to "fucking" kill him. The police arrived and defendant tried to run away but he was apprehended.
After defendant was apprehended, Wooley inspected his car. The driver's side key hole was damaged and he could no longer put a key in to unlock and open the door.
Wooley was shown surveillance video from the Shop. It depicted the driver's side half of his car. In the video, defendant is seen standing in front of the Shop walking back and forth. He walks out of the video but then comes around the back of Wooley's car. He is seen reaching his arm inside the cracked window and moving back and forth. His other hand appears to be trying to open the lock. Defendant got the door open and swung it open. At that point, Wooley ran toward defendant, pushing him away from the car. Defendant and Wooley then are not seen on the video.
Wooley testified at the preliminary hearing that defendant opened the door to the car and leaned in half of his body; that was not depicted on the video. Wooley told responding officers that he saw a White male sitting in Wooley's car in the driver's seat, but that was not true. Wooley suffered a headache and burned feet from being barefoot during the fight.
On June 11, around 4:30 p.m., Frizzelle was working at the Shop. He, Wooley and Lilian were inside the Shop and defendant was pacing back and forth outside. Defendant then put his "entire arm" inside of Wooley's car. He appeared to be trying to unlock the door. Frizzelle told Wooley, who ran out to confront defendant. Defendant immediately threw a punch at Wooley. Frizzelle called the police. While he was on the phone, defendant and Wooley were fighting. Wooley got defendant to the ground several times but defendant kept getting back up to fight Wooley. Defendant eventually crawled under Frizzelle's car but got back up.
Frizzelle observed defendant punch a hole in the window of Wooley's car. The window shattered. Defendant grabbed a knife out of Wooley's car and then took a few steps toward Wooley. Frizzelle yelled that defendant had knife. Defendant threw the knife back in Wooley's car and denied he had a knife. Defendant held the knife for four or five seconds. Defendant threatened to kill Wooley while he was holding the knife. The fire department arrived and defendant ran.
Frizzelle's 911 call was played for the jury. On the recording, Wooley and defendant are heard yelling at each other in the background. Frizzelle told the dispatcher that defendant had broken into his friend's car and they were now fighting. Frizzelle indicated that defendant had passed out but got back up again. Frizzelle then reported that defendant broke the car window and grabbed a knife. Defendant ran when he saw the police.
Sayegh was at the Shop on June 11 with Frizzelle and Wooley. She noticed that defendant was looking inside her car window. She told this to Wooley and Frizzelle so they were keeping a watch on defendant. Suddenly defendant was "inside" of Wooley's vehicle. Wooley ran out of the Shop. Sayegh described how defendant was at the driver's side door as follows: "When we were coming outside, he was kind of like halfway through his window, pulling the lock and like removing himself from the vehicle by the time we got out to open the door with the car handle."
Sayegh observed defendant punch in the passenger's side window with his bare hand. Defendant reached inside the car and grabbed Wooley's knife, which was on the front seat. Defendant grabbed a pole from a nearby business and came after Wooley, who had found a barstool to protect himself.
DISCUSSION
A. SUFFICIENT EVIDENCE OF BURGLARY (§ 459)
Defendant contends the evidence was insufficient to support his conviction of second degree burglary because he insists that opening a locked car door is not the same as entering the car. His contention appears to be that making entry into the car to unlock the door is not sufficient for entry; there must be a subsequent entry or "second entry."
Initially, it appears defendant committed burglary when he broke the window of Wooley's car and put his hand inside to retrieve the knife, which was sitting on the front seat. Defendant does not mention this evidence in his facts or evidence. However, the jury was not instructed they could find burglary on this theory. The People only argued in closing that the initial entry on the video constituted the crime of burglary. We cannot conclude on appeal that the jury only relied on this evidence in finding defendant guilty of automobile burglary. Nonetheless, there was more than sufficient evidence of second degree burglary.
In addressing sufficiency of the evidence, "we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Section 459 requires an entry into a vehicle when the doors are locked, with the intent to commit theft. "Because auto burglary can be committed only by entering a locked vehicle without the owner's consent, it is only accomplished by altering the vehicle's physical condition; at worst, by smashing a window, at best, by illegally unlocking it. These extremes, as well as other possible types of forcible entries, necessarily involve unlawfully altering the vehicle's locked state." (People v. Mooney (1983) 145 Cal.App.3d 502, 505.) "The pertinent issue is whether the locked state of the vehicle was altered." (In re James B. (2003) 109 Cal.App.4th 862, 870.) "We must use a liberal and common-sense approach to ascertain if a particular act constitutes a vehicle burglary within the confines of Penal Code section 459." (People v. Allen (2001) 86 Cal.App.4th 909, 915-916.)
This case is almost identical to In re James. In James, the victim locked his car and left the window open several inches for ventilation. The defendant reached into the vehicle through the window and unlocked the door. The defendant took a cell phone from inside the car. (In re James, supra, 109 Cal.App.4th at pp. 866-867.) On appeal, the defendant argued the vehicle was not "locked" because the window was partially open. (Id. at p. 867.) The court concluded, "In this case, minor entered a locked vehicle without the owner's consent by illegally unlocking it. [The owner] left windows open for ventilation, a reasonable thing to do. The doors were all locked. He did not, . . . , deliberately leave the window down far enough for someone to reach in and remove items without unlocking a door. The issue is not how far down the window was left, but whether the locked vehicle was entered by 'illegally unlocking it [thereby] unlawfully altering the vehicle's locked state.' [Citation.] . . . '[F]or all intents and purposes the car in question was locked,' and the elements of an auto burglary were met." (Id. at p. 871.)
Here, defendant altered the vehicle's locked state. Based on the video, defendant stuck his arm into the car through the window to unlock the door. Further, both Frizzelle and Sayegh testified that defendant put his entire arm inside of Wooley's car and then unlocked the car. In the video, defendant also is doing something to the outside lock on the door. Defendant apparently put something in the key hole because Wooley could no longer use it after this incident. Defendant still had his arm inside the car when the door was unlocked. He then opened the door.
Moreover, prior to defendant unlocking the car, Sayegh observed defendant looking into car windows. It was reasonably inferred by the jury that he intended to commit theft when he unlocked Wooley's car. Defense counsel conceded that defendant was guilty of burglary. Defense counsel argued, "Count 3 is simple. Okay. I've seen defense attorneys argues this count, well, opened the door. If I open the door to your house, and I don't go—no, did I enter your house and stuff like that? The problem with that is it's not right because he committed second degree burglary. Find him guilty on that." There was more than ample evidence that defendant committed second degree burglary.
The cases cited by defendant do not support his "second entry" theory. (In re Young K. (1996) 49 Cal.App.4th 861, 863-864 [stealing headlights from parked car not burglary as no disengagement of mechanism or pressure involved to gain entry to vehicle]; People v. Malcolm (1975) 47 Cal.App.3d 217, 219 [entering vehicle by opening wind wing with broken latch, reaching in and unlocking doors, was considered entering locked vehicle sufficient to support conviction of second degree burglary].) Defendant insists the additional evidence presented in Malcolm that defendant subsequently entered the vehicle and took items would not have been required if just unlocking the vehicle constituted automobile burglary. Further, Young required entry into the vehicle, not just taking headlights off of the vehicle. But Malcolm did not rely on this evidence to support the conviction and Young did not involve the issue as to whether entry was made into the vehicle. (See Young, at p. 865; Malcolm, at pp. 222-223.) Defendant provides no legal authority in support of his second entry theory, and we have found none. We need not address the issue. (People v. Hardy (1992) 2 Cal.4th 86, 150 [declined to address issue not supported by legal authority].)
Moreover, once defendant unlocked the driver's side door, his arm was still inside the car. As such, even if we were to somehow agree with defendant that entry did not occur when defendant reached in his arm to disengage the lock, his arm was still inside the car after he unlocked the car. This constitutes sufficient evidence of entry. Substantial evidence supported his conviction of second degree burglary.
B. ATTEMPTED BURGLARY
Defendant insists the trial court erred by failing to sua sponte instruct the jury on attempted second degree burglary. He claims the video created substantial doubt that the act of burglary occurred. The video showed that as soon as defendant opened the car door, he was attacked by Wooley and never entered the car. Defense counsel did not request any lesser offense instructions and conceded the burglary. However, even if we were to conclude the error was invited by defendant, he claims on appeal his counsel was ineffective. We will review the merits of the claim.
The jury was instructed on burglary as follows: "To prove that the defendant is guilty of [burglary], the People must prove that: [¶] 1. The defendant entered a locked vehicle; [¶] And [¶] 2. When he entered a locked vehicle, he intended to commit theft. [¶] To decide whether the defendant intended to commit theft, please refer to the separate instruction that I will give you on that crime. [¶] If you find the defendant guilty of burglary, it is burglary of the second degree. [¶] Burglary was committed if the defendant entered with the intent to commit theft. The defendant does not need to have actually committed theft, as long as he entered with the intent to do so. The People do not have to prove that the defendant actually committed theft." The jury was instructed on theft.
There is no dispute that attempted burglary is a lesser included offense of burglary. An " 'attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.' " (People v. Toledo (2001) 26 Cal.4th 221, 230.) However, the trial court does not necessarily have to give an attempt instruction. "To warrant such an instruction, there must be substantial evidence of the lesser included offense, that is, 'evidence from which a rational trier of fact could find beyond a reasonable doubt' that the defendant committed the lesser offense. [Citation.] Speculation is insufficient to require the giving of an instruction on a lesser included offense." (People v. Mendoza (2000) 24 Cal.4th 130, 174, superseded by statute on other grounds as stated by People v. Brooks (2017) 3 Cal.5th 1.) The trial court is not required to give instructions on lesser included offenses when there is "no evidence that the offense is less than that charged." (Ibid., see also People v. Barton (1995) 12 Cal.4th 186, 195.)
There simply was no evidence that defendant only committed attempted burglary. The video shows defendant reaching in the car, doing something inside the vehicle and then opening the door. The witnesses testified defendant reached his arm inside the vehicle and unlocked the door. As set forth ante, this was a completed automobile burglary. Defendant does not explain how reaching into the window and unlocking the door was not a completed burglary to support the giving of the attempted burglary instruction. Rather, he just makes the statement that the video establishes that the elements of burglary were not met and that as soon as he opened the door, he was attacked by Wooley. We have already rejected defendant's claim that a second entry into the vehicle was required to constitute second degree burglary; entry was made when unlocking the door. There was no error in failing to give the lesser offense instruction.
C. ADDITIONAL INSTRUCTION ON BURGLARY
Without any citation to proper legal authority, defendant claims the trial court erred and violated his federal Constitutional rights when it failed to further instruct the jury sua sponte that entry does not occur in automobile burglary cases until the locked door is opened and the defendant enters the passenger's compartment of the vehicle. The standard instruction CALCRIM No. 1700 does not convey that entry into the passenger compartment of the car must follow the breaching of the locked door.
Defendant provides no legal authority that such further instruction should be given in an automobile burglary case. As such, the claim has been waived on appeal. (People v. Hardy, supra, 2 Cal.4th at p. 150.) Moreover, we have rejected that there was no entry into Wooley's car; defendant clearly reached his hand inside and unlocked the door. As such, any failure to instruct the jury that entry had to be made into the car beyond the standard instruction was clearly harmless. (People v. Morehead (2011) 191 Cal.App.4th 765, 774.)
Defendant further contends cumulative errors require reversal. We have found no error on appeal. "[C]laims previously rejected on their substantive merits—i.e., this court found no legal error—cannot logically be used to support a cumulative error claim because we have already found there was no error to cumulate." (In re Reno (2012) 55 Cal.4th 428, 483.) We reject defendant's claim.
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. FIELDS
J.