Opinion
A148674
11-30-2017
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY LAMAR CORMIER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-150899-3)
Defendant Timothy Lamar Cormier appeals his conviction for first degree burglary. He contends the trial court erred by failing to instruct the jury it must find beyond a reasonable doubt that he removed a window screen at the burglarized property. Defendant also claims defense counsel rendered ineffective assistance by failing to (1) request a pinpoint instruction and (2) make specific arguments to the jury regarding removal of the screen and whether defendant "entered" the space between the screen and the window. Defendant further contends his constitutional rights were violated when the trial court precluded defense counsel from arguing defendant was guilty of the lesser related offense of trespass rather than residential burglary. Finding none of defendant's arguments persuasive, we affirm the judgment.
I. BACKGROUND
About 9:00 a.m. on March 30, 2015, J.B. was in her home. She got out of bed and went to the bathroom, where she heard trash cans being moved around in her yard. Thinking the sound might be related to garbage collection, she went to the front door. After opening the door and hearing trash being picked up, she went back to bed.
While she was trying to go back to sleep, J.B. heard scratching and banging sounds at her bedroom window. Through closed blinds on the window, she saw a shadow, which at first she thought was a dog. She felt scared to look out the window, and lay in bed silently watching. After it had been quiet for a minute, she heard her gate being moved. She then looked out the window and saw defendant standing in the neighbor's yard, staring at her gate. Defendant began to pace back and forth, "kind of like dancing" with one white earphone in his ear and looking at his watch.
After about five minutes, J.B. saw defendant open her gate and come into her backyard. She saw him crouch down "lower and lower and lower" and then move around the corner. Defendant started "messing with the window," and J.B. saw his "silhouette going down on the other side of [the] window." After hearing noises at the window for the second time, she called 911 and ran out of the room. She remained on the 911 call for approximately 13 minutes.
Throughout the 911 call, J.B. heard noises at the window that sounded like someone was trying to break in—"like something was being pried off and glass chip sounds as if [the window] was going to break." On the 911 call, portions of which were played for the jury in court, J.B. told the operator she could see someone's shadow; someone touched the window and something hit it. She said somebody was "pushing [her] window," "trying to crack it open," and "actually doing something to the glass."
At trial, J.B. identified a photograph of her bedroom window at which she heard scratching noises with a screen on the ground below it. She testified the screen was on the window, not the ground, the last time she went into the backyard before the incident. She also identified a mark on the window frame that had not been there before the incident, and said it "was the sound that I was hearing taking the screen off."
A police officer arrived at J.B.'s house in response to her phone call. As he was speaking to three individuals in front of the house, he saw defendant in the backyard through the slightly open gate. After the officer made eye contact, defendant ran and attempted to scale the back fence twice in two different locations. The officer ordered defendant to get down and then to come out with his hands up. Defendant exited the backyard through the gate as ordered and the officer detained and handcuffed him. At the time, defendant had a cell phone with white earphones in his possession. A crime scene investigator took photographs of the crime scene, including a bent window screen on the ground beneath the window, and "a close-up of the pry mark that is on the bottom portion of the windowsill." He also noticed smudges from a hand on the window, though he was unable to retrieve any usable fingerprints from the smudges.
Defendant was charged by information with one count of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)), with an allegation the offense was a violent felony within the meaning of Penal Code section 667.5, subdivision (c)(21) because a nonparticipant was present in the residence at the time of the burglary. Defendant pleaded not guilty. After trial, the jury found appellant guilty of first degree residential burglary and found true the allegation a nonparticipant was in the home at the time of the crime. The trial court sentenced defendant to four years for the burglary conviction and consecutive five-year enhancements for two prior serious felony convictions, for an aggregate term of 14 years.
II. DISCUSSION
A. Instructional Error
Defendant contends the trial court committed instructional error in violation of his due process rights. Noting the presence of conflicting evidence in the record about whether defendant (1) removed the window screen and (2) entered the space between the screen and the window, defendant argues the jury instructions were inadequate because the court did not instruct the jury it had to find those facts beyond a reasonable doubt. As a result, defendant reasons, the jury might have resolved the conflict (and convicted defendant) based on only a preponderance of the evidence.
We review de novo whether jury instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) In assessing the adequacy of instructions, we consider whether the trial court " 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) We " ' "assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." ' " (Ibid.)
We reject defendant's argument the trial court should have specifically instructed the jury that to find defendant guilty, it must find beyond a reasonable doubt the screen was in place and he entered the area between the screen and the window. The trial court properly instructed the jury under CALCRIM No. 220 that defendant is presumed innocent unless proven "guilty beyond a reasonable doubt." The jury was told, "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, unless I specifically tell you otherwise," and "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true."
As to burglary, the court instructed the jury with CALCRIM No. 1700 that the prosecution must prove each of the following elements beyond a reasonable doubt: (1) defendant entered a building; (2) the building was an inhabited house; and (3) when he entered a building, he intended to commit theft. Pursuant to the instruction, the court clarified the meaning of entry: "Under the law of burglary, a person enters a building if some part of his or her body or some object under his or her control penetrates the area inside the building's outer boundary." The instruction also explains, "A building's outer boundary includes the area inside a window screen." After defendant asked the trial court to require the jury to make a finding on the jury verdict form as to whether defendant had removed the screen, the trial court instead modified the standard CALCRIM No. 1700 instruction to state: "A building's outer boundary includes the area inside a window screen, if the screen was present in the window frame at the time of the attempt to enter the building." (Modification underscored.) The modified boundary instruction was given to the jury in place of the standard CALCRIM definition.
Thus, as given, the jury instructions explicitly stated the prosecution must prove beyond a reasonable doubt defendant entered a building, explained the meaning of "entered," and correctly defined the "outer boundary" of a building in the specific factual context where a screen is present in the window. Reading the instructions together as we must, the jurors effectively were told if they found the screen was on the window at the time of the crime, they must also find beyond a reasonable doubt defendant penetrated the area inside the screen (the outer boundary), i.e. he "entered" the building. (People v. Valencia (2002) 28 Cal.4th 1, 13, disapproved on other grounds in People v. Yarbrough (2012) 54 Cal.4th 889, 894 [penetration into the area behind a window screen amounts to an entry of a building within meaning of burglary statute].) We conclude the instructions, considered as a whole, adequately explained the applicable law and required the jury to find each element of the crime, including entry, beyond a reasonable doubt. B. Ineffective Assistance of Counsel
Indeed, defendant concedes the trial court's instruction was "correct."
Next, defendant contends defense counsel was ineffective for (1) failing to request a pinpoint instruction on removal of the window screen, and (2) for failing to argue the significance of the evidence showing a reasonable doubt about whether the screen was in place and defendant entered the space between the screen and the window. On this record, we cannot agree.
A defendant claiming ineffective assistance of counsel must demonstrate both deficient performance under prevailing professional norms and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) Our review of counsel's performance is "highly deferential" and we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " (Strickland, at p. 689.) "[I]f the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel's performance." (People v. Smithey (1999) 20 Cal.4th 936, 986-987.)
As an initial matter, a claim regarding ineffective assistance generally is more appropriately decided in a habeas corpus proceeding than on direct appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Because defendant contends there can be no satisfactory explanation for counsel's performance, however, we will address his claim.
We conclude defendant has not demonstrated counsel's performance was deficient under an objective standard of professional competency. Though counsel did not ask for a pinpoint instruction along the lines suggested in defendant's opening brief, counsel did ask the court to require the jury to make a specific factual finding defendant removed the screen from the window. As discussed above, the trial court instead modified the standard CALCRIM No. 1700 instruction in a way that appropriately guided the jury to correctly apply the law. Accordingly, the simplest explanation for counsel's failure to request further pinpoint instructions is they were not necessary.
Defendant argues an "appropriate" pinpoint instruction would have stated something like: "The prosecution has the burden of proving beyond a reasonable doubt that the defendant entered the house. Such entry may consist of some part of his body or some instrument under his control penetrating the area between a screen that was present in the window and the window itself. If you have a reasonable doubt that a window screen was in place and that [defendant] penetrated the window itself, you must find him not guilty of burglary." --------
As to counsel's purported failure to argue the significance of the absence of the screen and whether defendant penetrated the area between the screen and the window, defendant concedes his counsel "recognized and informed the jury that, for [defendant] to be guilty, he would have to have penetrated the area between where a screen was in place and the window." Moreover, as defendant also acknowledges, defense counsel expressly argued a number of facts supporting his reasonable doubt argument to the jury, including, among others, (1) J.B.'s inconsistent testimony about whether she had screens on all windows of her house; (2) the measurements of the screen on the ground in the photo did not appear to fit the window; (3) the pry marks on the outside of the window may have been old; (4) defendant was not found with a pry bar or any other tools, and none were found in the backyard; (5) no blood was found on the window though defendant's hands had blood on them; and (6) a spider web near the window frame was undisturbed despite the alleged removal of the screen. Counsel's decision not to further highlight the absence of the screen may well have been a strategic choice. Nor are we persuaded defense counsel's failure to argue the lesser included offense of attempted burglary was anything other than a reasonable tactical decision. (See, e.g., People v. Moore (1988) 201 Cal.App.3d 51, 57 ["Reversals for ineffective assistance of counsel during closing argument rarely occur; when they do, it is due to an argument against the client which concedes guilt, withdraws a crucial defense, or relies on an illegal defense."].)
Even assuming counsel's performance was deficient, however, defendant was not prejudiced. (Strickland, supra, 466 U.S. at p. 694 [to establish ineffective assistance, defendant must show reasonable probability, but for counsel's errors, the result of the proceedings would have been different]; People v. Sapp (2003) 31 Cal.4th 240, 263 [court may reject ineffective assistance claim where no prejudice is shown without determining whether counsel's performance was deficient].) Strong and persuasive evidence supported the conviction, including the live witness testimony, the playback of the 911 call, the photographs showing a bent screen on the ground below the window and pry marks on the window frame, and the fact defendant was found by the police on the property. Further, because the court's instructions to the jury were legally correct, and we presume the jury followed the law (People v. Wilson (2008) 44 Cal.4th 758, 803), it is not reasonably probable defendant would have received a more favorable outcome but for the purported errors. C. Lesser Related Offense
Finally, defendant argues the trial court erred by refusing to allow him to argue defendant committed trespass, rather than burglary. At trial, defense counsel asked the court to instruct the jury on the crime of trespass. The court denied the request, noting trespass is not a lesser included offense of residential burglary. During closing argument, defense counsel displayed the elements of trespass in a chart and argued to the jury defendant was not guilty of burglary, but of trespass. When the prosecution objected, the court admonished defense counsel and instructed the jury to disregard counsel's chart and arguments regarding trespass as "irrelevant to this particular case."
Our Supreme Court has explained, "A defendant has no right to instructions on lesser related offenses, even if he or she requests the instruction and it would have been supported by substantial evidence, because California law does not permit a court to instruct concerning an uncharged lesser related crime unless agreed to by both parties." (People v. Jennings (2010) 50 Cal.4th 616, 668; People v. Birks (1998) 19 Cal.4th 108, 136-137.) Defendant concedes the trial court properly did not instruct the jury as to the uncharged crime of trespass, but argues he nonetheless had a right to argue it as part of his defense.
Trial courts have broad discretion to control the scope of closing argument provided the defendant is not precluded from making his or her central point. (People v. Marshall (1996) 13 Cal.4th 799, 854-855; Pen. Code, § 1044 [trial judge has duty to control proceedings and limit argument to relevant and material matters].) The trial court in this case was not permitted to instruct on trespass absent the parties' agreement because that crime was not at issue in the case. (People v. Jennings, supra, 50 Cal.4th at p. 668.) In light of that fact, its decision to prevent counsel from arguing defendant was guilty of the uncharged crime was a reasonable choice to restrict argument to relevant matters. Importantly, the court's ruling did not prevent defendant from showing the elements of burglary were not met. (See, e.g., People v. Brown (2016) 6 Cal.App.5th 1074, 1088 [trial court did not err in prohibiting defendant charged with witness intimidation from arguing lesser related crime of forcibly inducing falsehood; counsel could still argue defendant intended to get witness to lie to the police but lacked intent to prevent the filing of a complaint].)
Defendant's reliance on People v. Samayoa (1997) 15 Cal.4th 795 and People v. Johnson (2016) 6 Cal.App.5th 505 is misplaced. In Samayoa, the Supreme Court concluded the prosecutor's comment to the jury that there are " 'zillions of crimes in the Penal Code' " and they had selected only two special circumstances was a proper response "to defense counsel's argument that the prosecution had overcharged the case, and simply clarified that the issue whether defendant could have been charged with additional or fewer offenses was irrelevant to the matters to be determined by the jury." (Id. at p. 843.) Though Samayoa is inapplicable here because it concerned prosecutorial misconduct, if anything, the Supreme Court's rationale supports the trial court's decision to disallow argument on trespass because it was similarly irrelevant to the crime charged. Johnson is likewise inapposite. In Johnson, the defendant was convicted of gross vehicular manslaughter while intoxicated in his first trial but the jury hung on second degree murder. (Id. at p. 507.) On retrial of the murder charge, the trial court erred by failing to instruct the jury that the defendant had been convicted of manslaughter in his first trial. (Id. at pp. 510-511.) Here, defendant was not being retried on charges related to an earlier conviction, and Johnson's holding has no application to these facts.
In sum, we conclude the trial court did not err by preventing counsel from arguing defendant was guilty of trespass rather than burglary.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.