Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06NF0408, John D. Conley, Judge.
Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant appeals from his conviction for burglary, theft of a firearm, and attempted criminal threats. He argues that the trial court deprived him of due process by giving an impermissible pinpoint instruction to the jury that directed a verdict on the count of burglary. We affirm.
I
FACTS
Defendant, 21-year-old Patrick Robert English was living in the garage apartment in a house his father, Robert English (English) rented. Defendant had access to the common areas of the house. English kept his bedroom door locked and had a handgun and some cash in a small safe in his bedroom closet.
Around 3:00 p.m. on January 30, 2006, defendant called English’s cell phone while English was at work and they had an argument. Over the course of several phone calls, defendant yelled at English, told English that he had taken his gun, and said that he was going to kill himself. Defendant also told English that he hated him and was going to slit English’s throat when he got home.
When defendant stopped answering his phone, English’s friend, who was in English’s truck with him at the time, called the police. English agreed to meet the police about a block from English’s house. When English met Paul Irish and James Boline, officers with the Fullerton Police Department, defendant’s car was not at the house.
English told Irish that defendant did not have permission to be in his bedroom, that he kept it locked, and that defendant had told him he broke the door down. English also said that no one else had the keys to his bedroom and safe. He stated that defendant told him that he had his gun, but mentioned that the only way defendant could have gotten the gun would be if he had stolen the key to the safe.
Irish finished taking English’s statement and then checked the house. He saw that English’s bedroom door had been forcibly opened, and that the safe was empty and looked like it had been damaged to be opened.
Boline found English’s handgun laying in the driver’s seat of defendant’s car after defendant was arrested. The officers took defendant to a holding cell at the Fullerton jail. Irish interviewed defendant after reading him his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Defendant told Irish that he was angry with English and that he had threatened to kill him, and he still wanted to kill his father. He also admitted to kicking English’s bedroom door in and breaking open the safe to take the gun and money.
At trial English told a different story than what he reported to the police. He stated that defendant had access to his bedroom and would sleep there sometimes. English also testified that he gave defendant keys to his bedroom and safe a week before the incident for defendant’s 21st birthday. He said that defendant had permission to use the gun and take money out of the safe. English also stated that he never revoked this permission. He explained that the reason he told Irish that his son did not have a key to the room was because he was upset and worried about defendant’s safety. Defendant did not testify or present any evidence.
A jury convicted defendant of first degree burglary, grand theft, and attempted criminal threats. He was sentenced to prison for two years and four months.
II
DISCUSSION
The court reviews jury instructions de novo. (People v. Berryman (1993) 6 Cal.4th 1048, 1089, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The court considers jury instructions as a whole when determining their correctness. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.) The inquiry is whether there is a reasonable likelihood that the jury applied the instruction in a way that violated the Constitution. (People v. Frye (1998) 18 Cal.4th 894, 957.) “‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Martin (2000) 78 Cal.App.4th 1107, 1112.)
The court gave the following instruction on burglary based on CALCRIM No. 1700: “To prove that the defendant is guilty of this crime the People must prove that: [¶] Number one: The defendant entered a building or a room within a building. [¶] And, two, when he entered a building or a room within the building he intended to commit theft. [¶] . . . [¶] A burglary was committed if the defendant entered with the intent to commit theft.”
The court also gave a special instruction on burglary of a room: “If a person forcibly enters a locked bedroom with the intent to commit theft, he is guilty of the burglary of that room, even though he has consent to enter and use other parts of the residence.”
Defendant argues that the special instruction was an impermissible pinpoint instruction in that it was argumentative, duplicative, and directed a guilty verdict on the charge of burglary. He says the court’s error revolves around two phrases in the special instruction, “forcibly enters a locked bedroom” and “even though he has consent to enter and use other parts of the residence” were factually specific. Because defendant does not explain or clarify how the “even though he has consent to enter and use other parts of the residence” language harmed him, we deem that portion of his argument to be waived. (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 109.)
An impermissible pinpoint instruction is one that highlights particular pieces of evidence. (People v. Wright (1988) 45 Cal.3d 1126, 1136-1137.) In Wright, the defendant requested an instruction listing specific items of evidence and advising the jury to consider them in determining whether there was reasonable doubt. The trial court refused to give this instruction and the California Supreme Court upheld the decision. Jury instructions cannot be argumentative — that is, they cannot invite the jury to make factual inferences favorable to a party from specific items of evidence. (Id. at p. 1135.) The Court explained that a jury instruction should contain a relevant principle of law without indicating the court’s opinion as to any fact in issue. (Ibid.)
Pinpoint instructions are permissible, however, if they highlight a theory of a party’s case rather than specific items of evidence. (People v. Wright, supra, 45 Cal.3d at p. 1137; see People v. Moore (1954) 43 Cal.2d 517, 526-527 [“There should be absolute impartiality as between the People and the defendant in the matter of instructions”].) For example, instructions stating that voluntary intoxication can be considered as to whether reasonable doubt exists for a specific intent crime may be permissible. Conversely, instructions that the jury may consider a defendant’s prior alcohol consumption would not. (People v. Wright, supra, 45 Cal.3dat p.1136.)
Jury instructions must leave it up to the jury to determine each element of the crime. (People v. Figueroa (1986) 41 Cal.3d 714, 726.) It is well established that a judge cannot direct a guilty verdict no matter how conclusive the evidence is. Jury instructions effectively direct a guilty verdict if they eliminate “‘other relevant considerations if the jury finds one fact to be true.’” (Id. at p. 724.)
In Figueroa, the court instructed the jury that a promissory note was a security under the Corporate Securities Law, even though the defense offered evidence that it was not. Whether or not the promissory note was a security was an element of crime for prosecution to prove. (People v. Figueroa, supra, 41 Cal.3d at p. 723.) The court held that the judge erred by removing the issue from the jury. (Id. at p. 734.)
In People v. Brown (1988) 46 Cal.3d 432 at page 443, the court held that the judge’s instruction to the jury that Garden Grove police officers were “peace officers” in a trial for killing a peace officer was permissible. The court explained that the judge instructed the jury on a point of law — the definition of peace officer. (Id. at pp. 443-444.)
The special instruction given in this case clarified a relatively obscure principle of law in neutral language. The court intended to explain that a person can be convicted of burglary of a room even though he or she initially had permission to enter the residence, or if he or she formed the requisite intent after entering the house but before entering the room. (People v. Sparks (2002) 28 Cal.4th 71.)
We next consider defendant’s argument that the phrase “forcibly enters a locked bedroom” directed the jury’s attention to the fact that defendant kicked in the door to a locked bedroom and directed a guilty verdict on the burglary charge. Defendant asserts that by instructing the jury that a person is “guilty” of burglary when he “forcibly enters a locked bedroom with the intent to commit theft,” the court removed the issue of whether defendant committed a burglary from the jury and violated his due process rights.
We disagree with defendant’s argument. This language may have implied that the prosecutor also needed to prove that defendant forcibly entered a locked bedroom to be guilty of burglary. In that case, rather than lowering the prosecution’s burden of proof, the instruction would tend to raise it.
Additionally, the court also gave a claim of right instruction, stating that the jury should reach a not guilty verdict on the counts of theft and burglary if it found that defendant believed he had a right to take the gun and money. We assume jurors are intelligent and capable of understanding and correctly applying the jury instructions they are given. (People v. Martin, supra, 78 Cal.App.4th at p. 1111.) Considering the instructions as a whole (People v. Campos, supra, 156 Cal.App.4th at p. 1237), we find no reasonable likelihood that the jury misapplied the law (People v. Frye, supra, 18 Cal.4th at p. 957).
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.