Opinion
H024778.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. STEVEN BURT HALL, Defendant and Appellant.
Defendant Steven Burt Hall was charged by information with three counts of first degree burglary (Pen. Code, § 459-460(a) - counts 1, 2, 3), and one count of making criminal threats (§ 422 - count 4). The information further alleged that defendant had suffered two prior serious felony convictions (§ 667, subd. (a)), that also qualified as prior strikes (§ 1170.12), and had served two prior prison terms (§ 667.5, subd. (b)). A jury found defendant not guilty of count 1, but guilty of the remaining counts. The jury also found the prior allegations to be true. At sentencing the court dismissed the prior strike allegations as to counts 3 and 4 and sentenced defendant to 25 years to life on count 2, with a consecutive determinate terms of one year, four months on count 3, eight months on count 4, and five years each for the two prior serious felony enhancements.
Further unspecified code references are to the Penal Code.
Defendant argues on appeal that, (1) the trial court erred in admitting evidence of uncharged acts; (2) there was insufficient evidence to support a finding that he entered the residences with intent to commit theft; (3) the trial court erred in failing to instruct the jury sua sponte on several lesser included offenses and/or defenses to first degree burglary; (4) the trial court erred in giving CALJIC No. 2.52; (5) the trial court erred in giving CALJIC No. 17.41.1; and (6) the cumulative effect of the errors require reversal. We find no error requiring reversal, and therefore affirm.
FACTS
Count 1
Although the jury found defendant not guilty of count 1, we recite the facts as they are relevant to the issues raised on appeal.
On December 29, 2000, several police officers had defendants car under surveillance. They followed the car in San Jose and Campbell from approximately 6 p.m., to approximately 7 p.m., during which time defendant drove as if he were trying to "shake the tail." Officers lost sight of defendant in Campbell, but his vehicle was found at approximately 7:30 p.m. on Sobey Road in Saratoga. Defendant was not in the car when it was found. About one-half hour later, defendant was seen walking toward the car from the direction of Sperry Lane. Officers then followed defendants car, stopped it on Quito Road, and took defendant into custody. Inside the car were a shopping bag full of rags and duct tape. Both items can be used to prevent fingerprints from being left during a burglary. Also inside the car were window cleaner and car wax.
Deputy Sheriff Gordon Wood responded to the area of Sobey Road and Sperry Lane the night of December 29, 2000, with his certified canine unit. Wood gave the dog the scent from the shirt defendant had been wearing that night. The dog followed the scent to a bush on the south side of Sperry Lane and ultimately to the front door of the residence at 15012 Sperry Lane. Officers did a perimeter search of the house and noticed that the door into the utility room in the back of the house was ajar. Inside the room, to the right of the door, was an alarm panel box. The box itself was covered in dust but the dust had been recently disturbed, as if somebody had grabbed at the box to open it.
On the evening of December 29, 2000, Richard Cohens five sons were home alone at his residence on 15012 Sperry Lane in Saratoga. Julio, who was taking care of things, heard something while he was watching television that he did not consider unusual until the police came to the door. The officers said that they were checking for a possible burglary, and asked if they could come inside to check their suspicions. Nothing was taken from the home.
Counts 2 and 3
Thomas Williams lived at 16096 Greenwood Road in Monte Sereno on January 10, 2000. At about 5 a.m. that day Williams was awakened by a noise, and got up. The house was dark, but Williams saw a person in the family room from his bedroom doorway. The person had his back to Williams, and was looking into the living room while holding something in his hands. Williams retreated immediately back into the bedroom and called 911. When the police arrived several minutes later, Williams told police that the intruder was wearing dark clothing and described the intruder as being male, about 59" tall, medium build, with dark collar-length smooth hair. Williams was not able to see the face of the intruder, and did not identify defendants face in the photo lineup he was shown. Nothing was taken from the home.
On January 10, 2000, Gabriel Mason was a guest in the home of Glynne Lewis at 16051 Greenwood Road in Monte Sereno. Greenwood is a fairly large rural street, and Highway 9 is nearby. About 5 oclock that morning, Mason was walking to the kitchen looking for the light switch when he saw a figure standing there. He then heard footsteps going downstairs through the cellar. Lewis heard Mason yelling from the kitchen and got up to find out why. She walked toward the kitchen where Mason was and asked him what was going on. The kitchen door to the cellar was open and the lights were on. Lewis headed downstairs far enough to see that the door leading to the backyard of the house was open, and then returned upstairs. Lewiss husband called the police. Nothing was missing from the home.
Los Gatos-Monte Sereno police officer Sam Wonnell was called to the area at approximately 5:30 a.m. with his certified canine unit. When he arrived, a red Mustang was parked in the area with a little bit of heat still emanating from the engine compartment. There was dew on the shrubbery and foliage throughout the area, but there was no dew on the car. Wonnell obtained a scent from the steering wheel and the drivers seat of the car and gave it to the dog. The dog followed the scent to the front of 16096 Greenwood Road, but lost it there. Wonnell took the dog to the back door of 16051 Greenwood Road and gave the dog the command to search for scent there. The dog followed the scent over a fence, across a putting green that showed a footprint of a running shoe, and down to a dry creek bed that was full of trees and shrubbery. Wonnell followed the dog underneath some thorny berry bushes and oak trees, and eventually up to Decatur Road, where the dog lost the scent. Highway 9 can be accessed from Decatur Road.
The police impounded the red Mustang. Department of Motor Vehicle (DMV) records indicated that it was registered to defendant at 201 Rose Court, apartment number two, in Campbell, which is about seven or eight miles from the Monte Sereno addresses. Los Gatos-Monte Sereno police detective Leyton Howard went to the Campbell address in an attempt to contact defendant. When he arrived at approximately 8:15 a.m., he knocked on the door and announced his presence, and telephoned the apartment, but nobody answered either the knocks or the telephone. He contacted the apartment manager, but the manager was not able to open the apartment door for him.
Police then set up surveillance of the apartment. At about 9:30 a.m., Howard saw defendant approach on foot with nothing in his hands, and enter the apartment. Defendant fit the description given to Howard by Williams and by DMV records. He had dark shoulder-length smooth hair. Officers went to the apartment door but defendant did not respond to the knocking and the announcement of their presence. Officers again telephoned the apartment but still got no response. After about one-half hour, officers forced entry into the apartment. Defendant was taken into custody after a brief struggle. At the time, Howard observed that defendant had scratches on both arms.
Defendant is approximately 61" tall, and weighs 215 to 220 pounds.
Running shoes were found in the apartment that were damp on the inside and had dirt and oak leaves attached to them. Also a total of almost $ 10,000 in cash (including 86 $ 100 bills) was found on defendants person. After waiving his Miranda rights, defendant said initially said that he had been in the apartment all night, and then said that he had gone out to get a paper. He also said that the red Mustang was his.
Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.
Count 4
Gary Hall is defendants brother. Sometime in 2000, Gary let defendant move in to Garys apartment in Campbell. Gary also hired defendant to install carpet and flooring, but defendant quit a couple of months before Christmas after Gary got behind in paying defendant what he owed him. Defendant told Gary that he was a good burglar and that he intended to live rich. Sometime after defendant had moved out, defendant asked to stay again with Gary but Gary told him no. They got into an argument, during which defendant said, "I hope someone kills you." Gary did not construe the statement as a threat because defendant said it in a fit of anger. A week or two later, defendant came to Garys home, took a television set and stereo equipment that he had left there, threw them in the outside dumpster, and cracked them both with a hammer. Defendant told Gary that he did not want Gary to use them. Later, around December 22, defendant came back and very calmly told Gary that he should move out of state. Defendant said that he "was going to take a gun" and "blow [Garys] brains out and his own because he didnt care anymore." Because defendant said it so calmly, it bothered Gary for several days. The more Gary thought about it, the more he feared for his life. When some officers came to his apartment after defendant was arrested, Gary told them about the incident and asked their opinion of what he should do. An officer who talked to Gary considered Gary to be concerned for his physical well-being and advised Gary to report the incident to the Campbell police. Gary admitted having a 1995 or 1996 conviction for second degree burglary, not of a residence.
Uncharged incidents
On June 14, 1993, Sebastian and Victoria Bosco lived at 15766 Apollo Heights Court in Saratoga. About 4:30 that morning, Sebastian was awakened by the sound of a dresser drawer being opened. Sebastian saw defendant standing next to him. Sebastian jumped up and yelled at defendant to get out. Defendant ran out a sliding glass door with Sebastian chasing him. Victoria woke up and called 911. Sebastian was able to see defendants face when defendant broke the latch on a wrought iron gate and turned around to push it closed in Sebastians face. When the police arrived, Sebastian described the intruder to the police. The police took Bosco to the place where defendant had been detained, and Bosco identified defendant as the intruder.
On May 29, 2000, William Henderson lived at 19880 Lark Way in Saratoga. At 3:30 that morning he went out to get the paper. On his way back to the house he saw somebody jump out from behind the bushes, jump over the hedge, and run to a nearby parked off-white pickup truck with a camper shell. It was too dark for Henderson to be able to describe the man, but he appeared to have something on his head. Henderson called the police and described what he had seen.
On May 29, 2000, at about 3:38 a.m., Santa Clara County sheriffs deputy Colleen Von Raesfeld was dispatched to a residence on Lark Way in Saratoga due to a reported prowler in the area. A male had been seen jumping from bushes in the front of the house into a light-colored pickup truck with a light-colored camper shell. Von Raesfeld was checking the surrounding area when she was alerted to a vehicle matching the description seen speeding eastbound on Saratoga-Los Gatos Road. She saw the taillights of a vehicle speeding away from Saratoga-Los Gatos Road on Austin, and followed the vehicle onto Highway 9. She eventually stopped the truck at Rose Avenue in Los Gatos. Defendant was the sole occupant of the truck. A search of the truck turned up several flashlights, a crowbar, some duct tape, towels, and some socks. Burglars commonly place socks on their hands instead of gloves. No burglary had occurred on Lark Way that morning.
Defense case
Defendant testified that he was not inside either of the homes at 16051 and 16096 Greenwood Road on January 10, 2000. He was not even at the location that night. The red Mustang parked nearby did belong to him, but he had not driven it that night; it had been stolen. He could not explain why his ignition key was found in the ignition of the car. He could not explain why the dog tracked his scent from the car to the home at 16051, or why the dog also tracked his scent at the home at 16096, but said, "but dogs dont talk either." Before he was arrested at 9:30 that morning, he had been out taking a walk. He was watching television in his bedroom when he heard sounds but he ignored them. He did not hear persons knocking on the front door identifying themselves as police officers. He did not answer the telephone because it was his brothers. When officers kicked in the front door and yelled at him to get down, he did not do so right away because he was shocked to see all the guns pointed at him. He got the scratches seen on his arms that day while laying carpet.
Defendant was on Lark Way around 3:30 the morning of May 29, 2000. A lot of times he cannot sleep and he just cruises around. He got out of his truck on Lark, "went to [urinate], got back in my truck and split." He was never in the bushes at 19880 Lark Way, he did not jump over a hedge, and he did not run back to his truck. He had just bought his truck a few days before and, "whatever was in there was in there."
Defendant was near 15012 Sperry Lane the evening of December 29, 2000, cruising around. He knew that he was being followed and did some counter-surveillance moves on purpose. He parked his car near Sperry Lane and got out to urinate. He has a kidney disease so he has to go frequently. He did not go up to the front door of the house or around the back to the utility room. He uses the bag full of rags in his car when he gets paste on his hands laying tile, or for cleaning a window sill. He does not use the rags or the duct tape or socks to commit burglaries.
He did threaten to kill Gary and then himself, but said that "its no big thing." He and his brother always get into arguments and yell at each other. He complained that Gary was not paying him for laying carpet and tile, and Gary complained that he was not paying the rent and utilities. He did not mean the threat any more than he meant any other threat in the past; he said it out of anger. He was also acting out of anger when he took a hammer and broke his television set and stereo equipment.
Defendant admitted that he was convicted of first degree burglary in 1993, but denied committing the 1993 burglary or any other burglary. "It was a misidentification. There was nothing stolen, nothing broken into. Thats the way I look at it." Defendant also admitted that he was convicted in 1987 of assault with a deadly weapon with personal use of a deadly or dangerous weapon.
DISCUSSION
Admission of evidence of uncharged acts
The original complaint filed January 4, 2001, and the amended complaint filed January 9, 2001, both charged defendant with attempted burglary of the Lark Way residence on May 29, 2000. Following the preliminary hearing, the court found insufficient evidence to hold defendant to answer on that count: "Looks to me more like a prowling than an attempted burglary." The court ordered the count dismissed. Pursuant to Evidence Code section 352, defendant sought exclusion at trial of any evidence relating to the May 29, 2000 incident, and of "any . . . other burglaries for which he is not charged." The prosecution sought admission during its case in chief of evidence of the June 14, 1993 incident underlying defendants prior burglary conviction and the May 29, 2000 incident. The court ruled that the prosecution could produce evidence of defendants prior uncharged acts "to show identity, intent and common scheme and plan."
The court instructed the jury in part after the close of evidence that, "Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. Except as you will otherwise be instructed, this evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. [P] It may be considered by you only for the limited purpose of determining if it tends to show the following. [P] A characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offenses in this case which would further tend to show the existence of the intent which is a necessary element of the crimes of burglary . . . . [P] The identity of the person who committed the crimes, if any, of which the defendant is accused. [P] A clear recollection [sic] between the other offenses and the one in which the defendant is accused so that it may be inferred that if the defendant committed the other offenses, the defendant also committed the crimes charged in this case, specifically the burglaries. [P] Now the existence of the intent which is a necessary element of the crime of burglary, the identity of the person who committed the crime, if any, which the defendant is accused, thats burglary. [P] For the limited purpose for which you may consider such evidence, you must weigh [it] in the same manner as you do all other evidence in this case. [P] You are not permitted to consider this evidence for any other purpose." (See CALJIC No. 2.50.) "Now within the meaning of the preceding instruction, the prosecution has a burden of proof by a preponderance [sic] that the defendant Mr. Hall committed the crimes other than those for which he is on trial. [P] You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that the defendant committed the other crimes." (See CALJIC No. 2.50.1.) "Now preponderance of the evidence means evidence that has more convincing force than opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of the issue[]preponderates[,] your finding on that issue must be against the party who had the burden of proving that. [P] You should consider all evidence bearing upon all the evidence [sic] regardless of who produced it." (See CALJIC No. 2.50.2.)
Defendant argues that evidence of the May 29, 2000 incident should not have been admitted because the evidence was insufficient to hold defendant for trial and the prosecution failed to establish by a preponderance of the evidence that defendant committed the offense. He argues that the trial court erred in finding sufficient similarity between the charged offenses and both uncharged offenses, as the circumstances of the uncharged offenses "differ dramatically" from any of the charged offenses. He also argues that there was no common plan or scheme, that the evidence was inadmissible to show intent, and that the evidence was more prejudicial than probative. Respondent argues that the court properly exercised its discretion in admitting the evidence to show identity, intent, and common plan, and in finding that the evidences probative value outweighed any possible prejudice to defendant.
Evidence Code section 1101, subdivision (a) provides in part: "Except as provided in this section . . . evidence of a persons character or a trait of his or her character (. . . in the form of . . . evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." Evidence Code section 1101, subdivision (b), an exception to this general rule of inadmissibility, provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime . . . or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." " Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity. [Citations.]" (People v. Tapia (1994) 25 Cal.App.4th 984, 1020.)
To be relevant, the evidence must tend to prove either an ultimate fact or an intermediate fact from which the ultimate fact may be presumed or inferred. (People v. Thompson (1980) 27 Cal.3d 303, 315, 165 Cal. Rptr. 289, 611 P.2d 883.) To be relevant on the issue of identity, the uncharged offense must be highly similar to the charged offenses. (People v. Kipp (1998) 18 Cal.4th 349, 369-370, 956 P.2d 1169; People v. Ewoldt (1994) 7 Cal.4th 380, 403, 867 P.2d 757.) A lesser degree of similarity is required to establish relevance on the issue of common design or plan. (People v. Kipp, supra, 18 Cal.4th at p. 371; People v. Ewoldt, supra, 7 Cal.4th at p. 402.) "For this purpose, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. [Citation.]" (People v. Kipp, supra, 18 Cal.4th at p. 371.) "The least degree of similarity is required to establish relevance on the issue of intent. (People v. Ewoldt, supra, 7 Cal.4th 380, 402.) For this purpose, the uncharged crimes need only be sufficiently similar [to the charged offenses] to support the inference that the defendant probably harbored the same intent in each instance. [Citations.]" (Ibid.)" (People v. Kipp , supra, 18 Cal.4th at p. 371.)
If relevant, the probative value of the prior bad act must be weighed against the danger "of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Admissibility of such evidence is committed to the sound discretion of the trial judge, whose discretionary decision will not be reversed on appeal absent clear abuse of discretion. (People v. Kipp , supra, 18 Cal.4th at pp. 369, 371.)
Defendant first argues that because the prosecution failed to present sufficient evidence at the preliminary hearing that the incident on the May 29, 2000, was an attempted burglary, the court erred in allowing the jury to consider evidence of the incident on the issues of identity, intent, or common plan. We disagree. The fact that the incident did not rise to the level of an attempted burglary does not mean that the evidence of the incident was not probative on any of the issues for which it was admitted. The evidence indicated that defendants vehicles were seen near the scene of the charged offenses within minutes of the alleged suspicious circumstances, both of which occurred at night close to Highway 9 and within a few miles and a few months of May 29, 2000. The offenses charged in counts 2 and 3 occurred in Monte Sereno, and the offense charged in count 1 occurred in Saratoga. Defendant had rags and duct tape in his car when he was stopped shortly after the incident in count 1. The evidence further showed that in the early morning hours on May 29, 2000, a man was seen jumping from some bushes in Saratoga into a parked pickup truck and driving away. The suspicious incident was immediately reported to police. Defendant was stopped in a pickup truck matching the reported description by police officers dispatched to the scene after the truck was seen driving in the surrounding area, including on Highway 9, within a few minutes of the report. Defendant had towels and duct tape in his pickup truck at the time he was stopped. Defendants proximity to the reported incident shortly after it was committed close to Highway 9 at an early hour, in a truck which matched the description given of the suspects truck, and with towels and duct tape in his truck, was sufficient for the evidence of the May 29, 2000 incident to be admitted into evidence on the issue of common plan.
We also agree with the trial court that the prior burglary offense was sufficiently similar to the current offenses to be relevant and admissible on the issue of intent. The evidence that on another occasion, defendant entered a house in the early hours of the morning and was looking in a dresser drawer when the residents discovered him was relevant to prove that defendant had the specific intent to enter the Williams and Lewis homes in the early hours of the morning and steal something. The incidents were sufficiently similar to justify admission under Evidence Code section 1101. "Although the circumstances were not distinctive, they nevertheless shared substantially similar characteristics to warrant the inference defendants intent was the same on each . . . occasion[]." (People v. Nible (1988) 200 Cal. App. 3d 838, 850, 246 Cal. Rptr. 119.) As the prior incidents were highly probative on the issues of intent and common plan, the probative value outweighed any possible prejudice arising from admission of the evidence. (People v. Ewoldt , supra, 7 Cal.4th at p. 402.)
Even assuming that the trial court erred in admitting the uncharged acts evidence to prove identity, the error was harmless. The jury was properly instructed that the prior misconduct evidence was to be considered for the purposes of proving intent and common plan. Since the prior misconduct evidence was admissible for these purposes, it is not reasonably probable that the result would have been different if the jury had not been instructed that the evidence could be considered for identity. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
Sufficiency of the evidence
Defendant argues that due process requires reversal of the two burglary convictions because there was insufficient evidence that he entered the residences with the intent to commit theft. Respondent argues that a review of the entire record in a light most favorable to the jurys decision demonstrates that substantial evidence exists for every element of first degree burglary. " The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. " (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal. Rptr. 431, 606 P.2d 738, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319, 61 L. Ed. 2d 560, 99 S. Ct. 2781.) "An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal. Rptr. 417, 475 P.2d 649; accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237, 278 Cal. Rptr. 640, 805 P.2d 899.) "A reasonable interference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [P] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence. [Citations.]" (People v. Morris (1988) 46 Cal.3d 1, 21, 249 Cal. Rptr. 119, 756 P.2d 843, overruled on other points in In re Sassounian (1995) 9 Cal.4th 535, 543-545, 887 P.2d 527, fns. 5 & 6.) A trier of fact may rely on inferences to support a conviction only if those inferences are "of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt" that the inferred facts are true. (People v. Raley (1992) 2 Cal.4th 870, 891, 830 P.2d 712.) "Evidence is sufficient to support a conviction only if it is substantial, that is, if it "reasonably inspires confidence" and is credible and of solid value. " (Ibid., citation omitted.) " Although the People must show that a defendant charged with burglary entered the premises with felonious [or larcenous] intent, such intent must usually be inferred from all of the facts and circumstances disclosed by the evidence, rarely being directly provable. [Citations.] When the evidence justifies a reasonable inference of felonious [or larcenous] intent, the verdict may not be disturbed on appeal. [Citations.]" (People v. Price (1991) 1 Cal.4th 324, 462, 821 P.2d 610.) Such inferences are reasonable so long as they are not based solely on speculation. (People v. Holt (1997) 15 Cal.4th 619, 669, 937 P.2d 213.)
The record includes ample evidence to support the jurys finding that appellant entered the residences alleged in counts 2 and 3 with the intent to steal. As stated above, evidence of the 1993 burglary was properly admitted to show intent. In that incident, the resident awoke in his bedroom in the early morning hours to find defendant opening his dresser drawer. This evidence is sufficient to support the finding that defendant was in that residents home intending to steal something. The circumstances of the 1993 burglary are similar to the circumstances of the 2000 burglaries. Two people inside their respective homes saw defendant in the early hours of the morning. The inference that defendant was also inside these homes with the intent to steal something is reasonable. The fact that defendants presence was discovered and he fled before he ever took anything is of no moment. (See People v. Frye (1985) 166 Cal. App. 3d 941, 947, 213 Cal. Rptr. 319 [unlawful entry late at night and flight sufficient to infer an intent to steal]; People v. Moody (1976) 59 Cal. App. 3d 357, 363, 131 Cal. Rptr. 923 [intent to commit theft at the time entry at night can be inferred from flight].)
The 1993 burglary was not the only evidence that supports the burglary conviction here. Defendant admitted to his brother that he was a good burglar and that he intended to live rich. Almost $ 10,000 was found on defendants person when he was arrested after the incidents in counts 2 and 3, and defendant quit working for his brother yet there was no evidence that defendant had any other employment. The record amply supports the finding that defendant entered the residences on January 10, 2000, with the intent to steal, and the burglary convictions will not be set aside.
Instructions on other offenses
Defendant contends that the burglary convictions must be reversed because the trial court failed to instruct the jury on lesser offenses: trespass (§ 602), unauthorized entry (§ 602.5), and loitering or prowling (§ 647, subd. (h).) He first argues that all these offenses are lesser included offenses of burglary, so that the trial court had a sua sponte duty to instruct on them. He also argues that, even if they are not lesser included offenses, their factual circumstances are defenses to the crime of first degree burglary because they negate the element of entry with the intent to commit theft.
Respondent argues that instruction on the indicated offenses was not required sua sponte as the offenses are not lesser included offenses of burglary. Respondent further argues that the offenses are not a theory of defense to the burglary charge, but are simply other crimes.
"Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 117, 960 P.2d 1073.) Defendant concedes that burglary can be committed without also committing trespass, unauthorized entry, or loitering or prowling. (See, e.g., People v. Pendleton (1979) 25 Cal.3d 371, 381-382, 158 Cal. Rptr. 343, 599 P.2d 649 [the entry need not constitute a trespass to support a burglary conviction]; People v. Lohbauer (1981) 29 Cal.3d 364, 369, 173 Cal. Rptr. 453, 627 P.2d 183 [a violation of § 602.5 is not an offense necessarily included in a violation of § 459]; People v. Lopez (1967) 249 Cal. App. 2d 93, 102-103, 57 Cal. Rptr. 441 [loitering is not a lesser included offense of burglary]; People v. West (1980) 107 Cal. App. 3d 987, 993, 165 Cal. Rptr. 24 [prowling is not an included offense of burglary].)
Nevertheless, defendant argues that the offenses are necessarily included because the facts actually alleged in the information included all the elements of these offenses.
Counts 2 and 3 of the information charged defendant with first degree burglary in relevant part as follows: "On or about January 10, 2000, . . . the crime of first degree burglary - entering with intent to commit theft, in violation of Penal Code section 459-460(a), a Felony, was committed by [defendant] who did enter an inhabited dwelling house . . . with the intent to commit theft." (Italics omitted.) Defendant argues that under the accusatory pleading test, the indicated offenses should be deemed lesser included offenses of the charged burglary because the burglary here, which was based on larceny, includes an element of the intent to steal, whereas the lesser offenses comprise the same elements as burglary with the exception of the intent to steal. For purposes of discussion only, we will accept defendants assertion. (See, e.g., People v. Waidla (2000) 22 Cal.4th 690, 733, 996 P.2d 46.)
"Sua sponte instructions [are required] on any and all lesser included offenses, or theories thereof, which are supported by the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 160, 960 P.2d 1094.) "The existence of any evidence, no matter how weak, will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury." (Id. at p. 162.) " "It has long been settled that the trial court need not, even if requested, instruct the jury on the existence and definition of a lesser and included offense if the evidence was such that the defendant, if guilty at all, was guilty of something beyond the lesser offense." [Citations.] [Citation.]" (People v. Guertin (1996) 47 Cal.App.4th 505, 507.) The failure to instruct on a lesser included offense is reversible error if and only if there is no reasonable probability the error of which the defendant complains affected the result. (People v. Breverman, supra, 19 Cal.4th at pp. 177-178.)
In this case any failure to instruct on the indicated lesser offenses was not reversible error, as there is no reasonable probability that the failure affected the result. The prosecution evidence indicated that defendant not only entered on the property of the victims on January 10, 2000, but he entered into their residences with the intent to steal. Defendants defense was that he was not inside either residence that night, and was not even in the area. By finding defendant guilty of the two burglaries charged on January 10, 2000, the jury necessarily rejected defendants testimony that he was nowhere near the victims properties that night. Defendant admitted being in the area of Sperry Lane the evening of December 29, 2000, but stated that he did not enter that victims property, and the jury found defendant not guilty of the burglary charged on that night. It is not reasonably probable that the jury would have found defendant guilty of an offense less than the charged burglaries on January 10, 2000 had it been instructed on the indicated lesser offenses.
CALJIC No. 2.52
Defendant asserts that CALJIC No. 2.52, the instruction on flight, violated his right to due process by permitting an unjustified inference that he was guilty. He argues that a reasonable juror would understand "consciousness of guilt" to mean consciousness of some wrongdoing rather than consciousness of having committed the specific crime charged. He also argues that a mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt. Defendant contends that his claims are not waived by counsels failure to object to and/or request modification of the instruction below, as the failure constitutes ineffective assistance of counsel.
"In general, a flight instruction is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt. [Citations.] "Flight requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested." [Citations.] Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so. [Citation.]" (People v. Bradford (1997) 14 Cal.4th 1005, 1055, 929 P.2d 544.)
"If there is evidence identifying the person who fled as the defendant, and if such evidence is relied upon as tending to show guilt, then it is proper to instruct on flight. [Citation.] The jury must know that it is entitled to infer consciousness of guilt from flight and that flight, alone, is not sufficient to establish guilt. [Citation.] The jurys need to know these things does not change just because identity is also an issue. Instead, such a case [only] requires the jury to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step. [Citation.]" (People v. Mason (1991) 52 Cal.3d 909, 943, 277 Cal. Rptr. 166, 802 P.2d 950.)
In this case, the evidence showed that defendant was seen inside two homes on Greenwood Road in the early morning hours of January 10, 2000. After being discovered inside the Lewis home, defendant ran downstairs and left the home through the cellar door. Although his car was parked nearby, with the key in the ignition, he went over a fence and walked down a dry creek bed that was full of oak trees and thorny berry bushes until he reached another street with access to Highway 9. He then walked to his brothers apartment some eight miles away. When the police knocked on the apartment door and telephoned the apartment, defendant did not answer either the knock or the telephone. Defendants conduct reasonably supports an inference that he sought to avoid being observed or arrested due to his consciousness of guilt. (Cf. People v. Shea (1995) 39 Cal.App.4th 1257, 1269-1270.)
Moreover, any error in giving the instruction was harmless. (See People v. Silva (1988) 45 Cal.3d 604, 628, 247 Cal. Rptr. 573, 754 P.2d 1070; People v. Watson, supra, 46 Cal.2d at p. 836.) The instruction did not assume that flight had been established, but left that factual determination and its significance to the jury. (People v. Visciotti (1992) 2 Cal.4th 1, 60-61, 825 P.2d 388.) The court also advised the jury that not all of its instructions were applicable, and cautioned that nothing the court said or done should be taken as suggestive of the existence of any fact. (See CALJIC Nos. 17.30, 17.31.) Furthermore, if the jury found that defendant fled, the instruction prevented the jury from basing a conviction exclusively on that fact. "We have no reason to believe the jury did not understand and follow all of the courts instructions." (People v. Anderson (1989) 210 Cal. App. 3d 414, 422, 258 Cal. Rptr. 482.)
As any error in giving the instruction was harmless, trial counsels failure to object to and/or request modification of CALJIC No. 2.52 did not constitute ineffective assistance.
Defendant also contends that the flight instruction violated his due process rights because it permits an inference of guilt on an insufficient factual basis. In People v. Mendoza (2000) 24 Cal.4th 130, 179-181, the California Supreme Court rejected similar challenges to the flight instruction. In Mendoza, the court explained that the flight of a defendant after the commission of a crime does indicate a consciousness of guilt and that therefore a flight instruction does not violate due process. As pertinent in this case, the instruction did not require the jury to infer guilt; it was up to the jury to decide if the inference was warranted. Further, the instruction told the jury that flight alone is insufficient to prove guilt. There was no due process violation.
CALJIC No. 17.41.1
Defendant argues that his constitutional rights to trial by jury were abridged when the trial court instructed the jury with CALJIC No. 17.41.1. He acknowledges that the California Supreme Court has concluded that the instruction does not violate a defendants state or federal constitutional rights (People v. Engelman (2002) 28 Cal.4th 436, 444), but argues that the courts conclusion that the instruction should not be given in a criminal case is inherently inconsistent with the former conclusion. We are bound by the Supreme Courts decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.)
Defendant also argues that CALJIC No. 17.41.1 misinforms the jury about its right and power to nullify. In People v. Williams (2001) 25 Cal.4th 441, held that CALJIC 17.41.1 does not misinstruct jurors as to their duty or their power. The jurors must take the law as given them by the court. (Id . at pp. 450-451.) Accordingly, there is no merit to this contention.
Cumulative error
Defendant argues that the cumulative effect of the alleged errors was overly prejudicial and provides a separate ground for reversal because it resulted in the "miscarriage of justice" (Cal. Const., art. VI, § 13), and violated his rights to due process and to trial by jury. Defendant testified in his own behalf and we have found that there is sufficient evidence to support the convictions, that there was no error in the admission of evidence and no prejudicial instructional error, and that no ineffective assistance of counsel has been shown. Accordingly, we cannot say that defendants conviction is the result of a miscarriage of justice.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Elia, Acting P.J., Wunderlich, J.