Opinion
A157182
06-29-2020
THE PEOPLE, Plaintiff and Respondent, v. FRANK JOHN CABRAL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-18-94314)
Frank Cabral was convicted of second-degree burglary of an uninhabited structure, felony vandalism and misdemeanor possession of methamphetamine. On appeal, Cabral contends his burglary conviction must be reversed due to a prejudicial jury instruction error. Because we agree, we do not address Cabral's alternative claims that his sentence violates Penal Code section 654 (statutory references are to this code), and that the abstract of judgment contains a clerical error.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Prosecution Evidence
On May 17, 2018, Burke Miller reported a trespass at his rural property on Fitzhugh Road in Mendocino County. Deputy sheriffs McCartney and Del Fiorentino followed Miller to the property, which was located a few hours' drive outside Laytonville. When they arrived between 7:00 and 8:00 p.m., double gates were opened and a center pole for locking the gates was on the ground. As they drove onto the property, the deputies saw lights on in the house. McCartney went to the front door, and Del Fiorentino went around back. Through a backdoor window, Del Fiorentino saw two men standing in the living room, who were later identified as Cabral and Ronnie Lambert. Del Fiorentino shone his flashlight into the house and announced the presence of sheriff's deputies. The men looked at him and ran. When Cabral attempted to leave through the front door, he was detained by McCartney. Lambert ran upstairs where he was found hiding on a balcony.
Del Fiorentino walked through the Fitzhugh house with Miller and took photographs of evidence. In the living room, there were several items on a coffee table, including a bottle of liquor, a bag of marijuana, a pipe, and a black box containing four baggies of methamphetamine. There was trash in a room near the front door, a broken cabinet in the kitchen, and redwood molding had been pulled off walls in some of the rooms. Miller reported that "shelving" was also missing. One room on the upper floor had a loft area, where the deputy found marijuana stalks hanging from fencing or chicken wire. In a truck parked outside the house, Del Fiorentino found marijuana, a baggie of methamphetamine and miscellaneous paraphernalia. Miller reported that an inflatable mattress in the truck bed had been taken from the house.
While Cabral was detained at the scene, he participated in a recorded interview. He reported that he had worked on the Fitzhugh property for several months in 2015. Then Miller acquired the land in a foreclosure and ran Cabral off without giving him the chance to collect his belongings. Recently, Cabral heard the property was vacant, which was a "crime against humanity." So, he moved back in, gaining entry through an unlocked window. Cabral felt that he had not committed a crime because Miller had "fucked" him out of a job and all of his belongings, and because he had been working the land and had "plants." Cabral clarified that he was a farmer growing vegetables, not "weed."
The deputy asked what Cabral knew about the marijuana hanging in an upstairs room. Cabral said it was there when he moved in. When Del Fiorentino pointed out that room had been damaged, Cabral responded: "Oh, yeah. Actually a nuisance neighbor did that. I do absolutely no damage." Cabral refused to give the neighbor's name, stating that he was "obligated" to not to "say names." He did not know who owned the truck parked outside the house and declined to say when it showed up. He admitted that he had smoked methamphetamine approximately four hours earlier and that the "meth pipe" on the coffee table belonged to him. He said that he took "responsibility" for the black box because it was found in his home.
Miller testified at trial that when he purchased the Fitzhugh property in 2011 or 2012, he lived there for a few weeks while he fixed it up. Later, he rented the property for two and half years, until March 2018 when the tenant moved out. Prior to the May 2018 incident, Miller had last been at the property in April, when he and a cleaning crew spent a few days cleaning the house from top to bottom and preparing it for sale.
Miller described the Fitzhugh property as 40-acres of secluded land enclosed by a cyclone fence, with a 4,000 square foot "custom" house that has a "state of the art" solar panel system, diesel generator, and uses spring water stored in water tanks on the property. Miller testified that when he locked up and left his property in April 2018, the house was not damaged, with a few minor exceptions, and everything was in working order. He estimated that the damage inflicted on his property would cost him approximately $20,000.
Miller also testified that there was neither methamphetamine nor marijuana in the Fitzhugh house when he left it. According to Miller, a previous owner had built a "secret" room behind a bathroom and, after Miller locked up the house in April, someone broke through a wall of shelves to access the secret room and began using it to dry marijuana.
Miller denied giving anybody permission to be on his property during the relevant time period. He testified that he has never met Cabral, but he acknowledged that the defendant, whom he calls "Frank," had been on the Fitzhugh property prior to May 2018. Miller did not believe that his former tenant and Cabral knew each other.
II. The Defense Case
Cabral testified that in 2015 a man named Russell hired him to live at the Fitzhugh property and "grow weed." Cabral lived alone in the house for seven months until the day Miller showed up and demanded that Cabral "remove" himself. Cabral was not allowed to retrieve his belongings from the house before he was "basically run off the property." In April 2018, Cabral "became aware" that the property was "again vacant," so he "moved back in." During the three or so weeks that Cabral lived at the property, he worked in the yard, pulling weeds and growing vegetables. The house was a mess, so Cabral cleaned it. He collected the garbage in a room in the front of the house where animals could not get to it. He cleaned the kitchen, and cleaned out and used the refrigerator, but the sinks did not work. When he needed food, he hitchhiked into town. He removed the pole from the front gate so he would not have to climb the fence.
While Cabral was living at the Fitzhugh house, several neighbors visited, including Ronnie Lambert. On the day the sheriffs came to the house, Lambert had come for a visit in a truck that he parked outside the house. When they heard the officers, Lambert took a black box out of his pocket and put it on the couch.
Cabral testified that when he moved into the Fitzhugh house, he did not intend to steal or damage anything. He testified further that he did not steal, damage or destroy any property. Instead, he cleaned things up so they would function and fixed some things. For example, when he moved in, there was no running water, so he "retapped" the spring.
Under cross-examination, Cabral testified that he believed a neighbor named Scott Serge had damaged the upstairs room that contained the marijuana plants on a day that Cabral had gone into town for groceries. When he returned to the house, he found Serge inside and noticed that damage had been done. Aside from tapping the spring and using PVC he found outside to run a line to the existing line in the house, Cabral did not make any changes to the house. He acknowledged that while he was at the house, he used the faucets to access water, watched TV, took a shower, and used the toilet.
III. Trial Proceedings
In December 2018, Cabral was tried on three felony charges: second-degree burglary (§ 459); vandalism (§ 594); possession of methamphetamine with intent to sell (Health & Saf. Code, § 11378).
A. Pertinent Jury Instructions
Before the prosecutor presented the People's case, the court delivered preliminary instructions describing the charges against Cabral. Regarding the burglary charge, the jury was instructed that in order to prove Cabral was guilty of this crime, the People had to prove: "1. The defendant entered a structure; [¶] 2. When he entered the structure, he intended to commit theft or a felony; and [¶] 3. The structure that the defendant entered was a noncommercial establishment."
After the close of evidence, the trial court delivered comprehensive jury instructions regarding general principles of law, the three charges against Cabral, and the lesser included offense of simple possession of a controlled substance.
The court used CALCRIM 1700 to instruct regarding the elements of burglary. This instruction stated that, for Cabral to be found guilty of burglary, the People had to prove: "1. The defendant entered a structure" and "2. When he entered a structure, he intended to commit theft or Possession for Sale of a Controlled Substance or felony Vandalism." This instruction also stated: "To decide whether the defendant intended to commit theft or Possession for Sale of a Controlled Substance or felony Vandalism, please refer to the separate instructions that I will give you on those crimes."
CALCRIM 1700 also instructed the jury regarding other principles relevant to the intent element of burglary, including that the jury must agree that the defendant intended to commit one of the target offenses alleged by the People, but that jurors do "not all have to agree on which one of those crimes he intended."
The trial court delivered separate instructions regarding the crimes of felony vandalism and possession for sale of a controlled substance. However, the court did not give any separate instruction addressing the crime of theft, notwithstanding language in CALCRIM 1700 indicating that such instruction would be given.
We note too that the defense had requested CALCRIM 1800, which would have instructed the jury that theft by larceny is defined by the following elements: "1. The defendant took possession of property owned by someone else; [¶] 2. The defendant took the property without the owner's [or owner's agent's] consent; [¶] 3. When the defendant took the property, (he/she) intended (to deprive the owner of it permanently . . .); [¶] AND [¶] 4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief."
In the appellate record, we find no ruling or remark by the trial court to explain why it did not give CALCRIM 1800 or any instruction regarding the crime of theft by larceny.
B. Closing Arguments
On December 17, 2018, after a four-day recess, the jury heard closing arguments.
The prosecutor argued that Cabral was guilty of second-degree burglary because he entered the Fitzhugh house with the intent to commit theft, vandalism and a felony drug offense. Urging the jury to find that Cabral had the intent to commit theft when he entered the house, the prosecutor argued that Cabral "went there to use the-and avail himself of the systems that were already in place[,] . . . the electricity, the water, the sewer." The prosecutor argued that Miller had paid for and maintained the solar panel system, the generator and the water system, and even though these were not public utilities, when Cabral used them, he committed a "theft of power usage."
Developing this theory, the prosecutor asked, "So how do you define theft?" Answering his own question, counsel stated that theft is known as larceny, and then outlined for the jury "all the different things" it needed to "know" to be "convinced" that a theft occurred. First, Cabral took possession of Miller's property by using "stored energy" in the house. Second, Cabral took this energy without Miller's permission. Third, when he took the power, Cabral intended to deprive the owner of it permanently by using it up. Fourth, the prosecutor argued, Cabral's conduct constituted theft because he moved the property, albeit a short distance. For example, when he turned on a light switch, stored power moved from the battery to the light.
The prosecutor argued further that even if some jurors believed Cabral decided to use the power, water and other systems after he was already inside the house, he should still be found guilty of burglary based on evidence that he entered the house with the intent to commit a different felony, since the crime of burglary did not require that the jury agree about what felony the defendant intended to commit. The prosecutor then reminded the jury that Cabral had been charged with two additional felonies, and there was strong evidence that when he entered the Fitzhugh house, he possessed methamphetamine that he intended to sell.
During the remainder of his closing argument, the prosecutor argued the trial evidence established all the elements of felony vandalism and drug possession with the intent to sell. Regarding the vandalism charge, the prosecutor urged the jury to find that Cabral was the person who damaged the Fitzhugh property based on circumstantial evidence that Cabral hated Miller and wanted to get back at him.
Defense counsel argued that the trial evidence showed that Cabral was not guilty of the three felony charges, although he may have committed some lesser crimes while he was a squatter at the Fitzhugh house. Beginning with the drug charge, counsel argued that the evidence showed nothing more than simple possession. Lambert brought methamphetamine when he came to visit and, while Cabral may have possessed those drugs because they were in the house where he was living, he did not intend to sell them. Defense counsel then argued that Cabral should be found not guilty of vandalism based on evidence that Miller had left his property unattended and that unfriendly neighbors used it as they pleased.
Finally, the defense argued that Cabral was not a burglar, but a squatter and a trespasser, whose only intent was to occupy and perhaps acquire the Fitzhugh property by adverse possession. Counsel argued that Cabral could not be convicted of burglary because he did not enter the house with the intent to commit any felony; he did not intend to sell drugs, to commit vandalism, or to "steal stuff in there." Indeed, counsel argued, there was no evidence that Cabral took anything "besides free electricity and free water."
C. Jury Verdicts and Cabral's Sentence
On the afternoon of December 17, the jury returned their verdicts. Cabral was found guilty of second-degree burglary as charged in the information, guilty of vandalism in the amount of $400 dollars or more, not guilty of possession of a controlled substance for sale, but guilty of misdemeanor possession of a controlled substance.
The following week, the court found that Cabral had suffered a prior strike conviction. In March 2019, Cabral was sentenced to an aggregate prison term of five years and four months.
DISCUSSION
Cabral contends his burglary conviction must be reversed because the trial court failed to instruct the jury adequately regarding the intent element of burglary. " 'The trial court must instruct even without request on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense.' " (People v. Wade (2012) 204 Cal.App.4th 1142, 1148.) "Errors in jury instructions are questions of law, which we review de novo." (People v. Jandres (2014) 226 Cal.App.4th 340, 358.)
Burglary is committed when a defendant enters a house with the intent to commit larceny or any felony. (§ 459.) "In a burglary prosecution, complete and accurate jury instructions include the definition of each felony the defendant is alleged to have intended to commit upon entry into the burglarized structure." (People v. Rathert (2000) 24 Cal.4th 200, 204; People v. Hughes (2002) 27 Cal.4th 287, 349 (Hughes) [the trial court's duty to define the "target offenses" of a burglary charge and "instruct on their elements has become well established"].)
In this case, the People alleged that theft by larceny was one of three possible target offenses of the burglary charge. "The elements of theft by larceny are well settled: the offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away." (People v. Davis (1998) 19 Cal.4th 301, 305.) These elements are addressed in CALCRIM 1800, which the defense requested. Failure to give CALCRIM 1800 or otherwise instruct regarding the target offense of theft was error. (Hughes, supra, 27 Cal.4th at p. 349; People v. Smith (1978) 78 Cal.App.3d 698, 708.)
The People concede the error, but they argue it was harmless. We disagree. The issue is whether the absence of an instruction defining theft prejudiced the defendant's burglary conviction. (Hughes, supra, 27 Cal.4th at pp. 352-353.) The problem here is that one or more of the jurors could have found that Cabral committed burglary because he entered the Fitzhugh house with the intent to commit theft even though the jury did not receive any instruction about what the crime of theft entails. While the jury was instructed correctly that they did not have to agree on a target offense of the alleged burglary, this instruction increased the likelihood that the burglary verdict was based on a factually inadequate or legally erroneous finding that Cabral entered the house with intent to commit theft. Indeed, during closing argument, the prosecutor relied on a theft theory of burglary. Moreover, the jury rejected the prosecutor's primary backup theory—that Cabral entered with the intent to sell drugs—by finding him not guilty of the felony drug charge. Under these circumstances, the instructional error was not harmless beyond a reasonable doubt. (See Hughes, supra, 27 Cal.4th at p. 353 [applying Chapman v. California (1967) 386 U.S. 18 to assess prejudice of failure to instruct on elements of target offense of burglary].)
Disagreeing with our conclusion, the People posit that the omission in the instructions was cured because the prosecutor defined the crime of theft by larceny during his closing argument. The prosecutor referenced the elements of theft indirectly, in the context of an advocate's argument that Cabral was guilty of burglary. That argument was not an adequate substitute for proper instruction regarding the target offense of the burglary charge.
The People also contend that the error was harmless because Cabral admitted entering the Fitzhugh house with the intent to commit larceny. According to this two-part argument (1) Cabral's unauthorized use of water and power in the house constituted theft by larceny, and (2) the inference that Cabral entered the house with the intent to use these resources is "inescapable." We disagree that either of these two points was established beyond a reasonable doubt.
Theft by larceny requires proof that the thief intended permanently to deprive the owner of personal property that had some value. (People v. Avery (2002) 27 Cal.4th 49, 58.) Here, the trial evidence did not compel a finding that Cabral took property of value from Miller by using water and power while inside the Fitzhugh house. Cabral tapped water from an underground spring, and apparently used power supplied by the sun, which would have deprived Miller of nothing. The attorney general points to no evidence that Cabral also relied on the generator at the house. A properly instructed jury could have concluded that Cabral did not commit theft by using the renewable resources because his conduct did not deprive Miller of anything of value.
The People insist that use of water and power inside a house constitutes theft, relying on People v. Dingle (1985) 174 Cal.App.3d 21 (Dingle), and People v. Martinez (2002) 95 Cal.App.4th 581 (Martinez).
In Dingle, supra, 174 Cal.App.3d 21, the defendant was convicted of multiple offenses, including murder, rape and two counts of burglary. The judgment was reversed on appeal due to the admission of an involuntary confession. For guidance on retrial, the Dingle court also addressed the defendant's claim that his conviction for burglary with intent to commit theft was premised on an invalid legal theory. At trial, the prosecutor's theory was that on an occasion prior to the murder, the defendant broke into the murder victim's home for the purpose of making a long-distance phone call. (Id. at p. 29.) On appeal, the defendant acknowledged that fraudulently obtaining telephone service in violation of section 502.7 is a species of theft, but he argued that the definition of theft for purposes of burglary is limited to larceny. (Dingle, at p. 30.) Rejecting this claim, the Dingle court found that the term "theft" embraces other kinds of unlawful takings with elements different from the elements of common law larceny. The defendant's "act of defrauding" was "theft akin to false pretenses," and an intent to commit that offense was sufficient to satisfy the intent element of burglary. (Ibid.)
In contrast to Dingle, there is no allegation or evidence that Cabral fraudulently obtained telephone service or any other service the homeowner would have paid for while he was staying at the Fitzhugh house. The prosecutor's theory in this case was that Cabral committed larceny, but the jury was not required to accept that theory absent evidence that Cabral took some property with intrinsic value from inside the house.
In Martinez, supra, 95 Cal.App.4th 581, the defendant was charged with burglary based on the theory that he entered a house for the purpose of stealing food. The prosecution relied on evidence that the defendant had prepared a meal for himself, set the table and removed all of his clothes before he was interrupted by the police. (Id. at p. 583.) Martinez's defense was that he decided to take food after he entered the house. Relying on his own testimony, Martinez claimed that the only reason he went in the home was to take a shower, which he did for approximately 30 minutes, and then he remained naked after deciding to prepare a meal. In response to this defense, the prosecutor argued Martinez had the intent to commit theft even if his only purpose for entering the house was to take a shower. (Id. at p. 584.) Applying the rule that an "item" constitutes property under the theft statutes so long as it has "some intrinsic value, however slight," the appellate court affirmed the burglary conviction, finding that evidence the defendant intended "to use the soap, shampoo and hot water of the homeowner constituted an intent to commit larceny under the circumstances of this case." (Id. at p. 585-586.)
Unlike Martinez, the theft theory of burglary that was presented to the jury in this case was not based on evidence that the defendant consumed personal hygiene products or any other item. Although Cabral admitted taking a shower, this was not necessarily an admission of theft since water in the Fitzhugh home came from an underground spring that Cabral himself had tapped, and there is no evidence compelling the conclusion that this natural resource was personal property within the meaning of the law of theft.
We are also unpersuaded by the second prong of the People's harmless error theory, that an inference of an intent to commit theft was inevitable. Even if we credit the prosecutor's theory that using water or power was theft, it would not compel the conclusion that Cabral entered the Fitzhugh house with the specific intent to commit that type of theft.
The People argue that even if Cabral did not initially intend to use energy systems in the house, he "must have" intended to use them when he repeatedly re-entered the house during his three weeks stay. But Cabral's testimony supported the defense theory that Cabral was merely a squatter, and that each time he entered the house, his sole purpose was to seek shelter. To be sure, the People disputed this defense, but it was not foreclosed by the evidence. Indeed, the People overlook authority holding that mere entry into a house does not support an inference of intent to use utilities inside the house. (In re Leanna W. (2004) 120 Cal.App.4th 735, 742.)
The People argue that a defendant's intent to use utilities upon entry can be inferred from evidence that the utilities were actually used. Perhaps so, but we find no published authority affirming a burglary conviction based on this theory. Dingle and Martinez held that a defendant's intent to use the home's utilities at the time of entry could support burglary convictions without addressing what evidence was necessary to prove the defendant harbored such an intent. (Dingle, supra, 174 Cal.App.3d at p. 29; Martinez, supra, 95 Cal.App.4th at pp. 584-585.) Indeed, Martinez admitted breaking into the home for the specific purpose of taking a shower, so there was no need to infer intent. (Martinez, at p. 584.) Affirming a burglary conviction that is based on incidental use of utilities in the home is problematic because it creates no boundaries for other cases. (In re Leanna W., supra, 120 Cal.App.4th at p. 742.) Our particular concern here is to avoid blurring the distinction between burglary and trespass.
To convict Cabral of burglary based on the prosecutor's theft theory, the jury would have had to find that (1) unauthorized use of spring water or solar energy constituted a taking of personal property that has some intrinsic value, and (2) Cabral's use of energy while he was inside the house justified an inference that he entered for the purpose of taking that energy, notwithstanding the absence of independent evidence he harbored such an intent. We are not called upon to decide whether the evidence could have supported a properly instructed jury in drawing these conclusions. Rather, we must determine whether the evidence compels both conclusions beyond a reasonable doubt. Because the jury was not instructed regarding either of these issues, Cabral did not have a meaningful opportunity to dispute them. Under the facts presented, we cannot conclude the error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is reversed as to Cabral's conviction for second degree burglary and affirmed as to his convictions for vandalism and drug possession. This matter is remanded for resentencing, a potential new trial on the burglary charge, and other proceedings consistent with this decision.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
STREETER, J.