Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD207187, Peter L. Gallagher, Judge.
McDONALD, J.
Thomas Joseph Linton appeals a judgment following his jury conviction of one count of burglary (Pen. Code, § 459) and two counts of receiving stolen property (§ 496, subd. (a)). On appeal, he contends (1) the evidence is insufficient to support his burglary conviction, specifically the element of intent to commit theft; and (2) the trial court erred by instructing on the offense of burglary because it did not instruct sua sponte on the definition of theft.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
November 2006 Stolen Property (Count 5)
Adam Cote saw Linton in his neighborhood over a period of three to five weeks. Cote saw him near five outdoor private storage sheds one day and inquired what he was doing there. Linton stated he had lost his job, was homeless, and was looking for a place to store his "stuff" until he got a new place to live. Linton opened an unlocked shed and showed Cote some fishing poles, tools, and other items stored inside that were mostly "junky." Subsequently, Cote began to notice wrappers and boxes near the shed Linton used. Cote opened the shed next to Linton's and saw more "stuff" inside, making Cote uncomfortable about the situation. One day, Cote heard a scuffle and went outside to find Linton fighting with a neighbor, Gregory Mason. Mason had discovered items missing from his locked storage shed, including a mountain bike, surfboard, and drums. About one hour later, Mason saw Linton riding Mason's bike and stopped him. Mason tried to detain Linton, but he ran away. Mason and Cote followed Linton and called police. A police officer responded and, with the tenants' permission, opened an apartment building's storage units (apparently the sheds Cote saw Linton near). The officer found drums, two surfboards, wet suits, and computer items, which were returned to their owners. The drums apparently belonged to Mason. The wet suits apparently belonged to Mason's roommate, Charles Fredrickson.
Burglary (Count 3)
At about 7:00 a.m. on June 8, 2007, Christine Sloan was walking her dog when she saw Linton standing in front of a storage unit with its door wide open. Linton was cleaning a grill and put it down when he saw her. He had a surprised expression and went inside the storage unit. He picked up something inside the unit, put it in a bag, carefully closed the unit's door, and walked away carrying the bag and a guitar case. She called police and then left a note on the door of the apartment building's owner, Ralph Carrizosa. Later that day, she looked at the storage unit and noticed a big hole in its dead bolt and its doorknob damaged.
At about 9:30 a.m. that day, Larry Wilson, the apartment building's manager, noticed one of the storage units had its dead bolt drilled out and its doorknob broken. The unit was about four feet wide, six feet deep, and eight feet high. He secured the door in a closed position with two 3-inch screws. However, the next morning he saw those screws had been removed and were lying on the ground. Carrizosa opened the storage unit for Dan Murray, the unit's renter. Murray discovered items missing from his storage unit, including four computers, two large boxes of food, and emergency water. He also found items that did not belong to him, including golf clubs, electronics, and women's underwear. He never recovered any of his missing property. He had never given anyone permission to enter his storage unit.
On or about June 11, the door hinges of Murray's storage unit were bent and its hinge pins were missing. Carrizosa repaired the door. On June 11, Carrizosa saw Linton kneeling down inside a storage unit located about a quarter of a block from Murray's storage unit. Linton had a battery operated drill next to him. The drill was capable of drilling a hole through a lock. Carrizosa called police.
June 2007 Stolen Property (Count 4)
On June 9, 2007, Christopher Hahn lived in a studio apartment in a converted garage. That day, Hahn left to stay at his girlfriend's house and did not return until about 7:00 a.m. on June 11. On his return, he found the garage door wide open and the door to his apartment "jimmied." His belongings were strewn all over the floor of his apartment. All of his valuable property had been taken, including a laptop computer, an iPod, a Nintendo Wii, a Play Station, tools, a guitar, and a power drill.
Responding to Carrizosa's call on June 11, 2007, San Diego Police Officer Jeffrey Nichols spoke to Carrizosa, who then pointed out Linton. Linton was standing in front of two storage sheds behind an apartment building. The sheds were filled with property. Linton had a drill at his feet. Linton told Nichols that all of the property was his "stuff" and he had a right to be there. San Diego Police Officer Nick Minx verified with the property's manager that Linton had permission to use the two storage sheds. Linton told Minx he had "found" the property he kept in the sheds. Minx found a laptop computer, an iPod, an industrial radio, tools, an orange Tupperware container, and other property in the sheds. By turning on the laptop, Minx was able to send messages to persons listed on it, who then told him the laptop belonged to Hahn. Hahn arrived to claim the laptop and also identified and claimed the iPod and radio as his property.
When Hahn told Jonathan Foster of the incident regarding his storage unit, Foster found that the lock to his storage unit had been taken. The door to his unit was open, its latch screws were missing, and his orange Tupperware container was missing. The container contained his sports card collection, recovered by police.
Information and Trial
A consolidated information charged Linton with three counts of burglary (§ 459) and two counts of receiving stolen property (§ 496, subd. (a)). At trial, the prosecution presented the testimonies of witnesses who testified substantially as described above. Linton did not testify or call any witnesses in his defense.
The jury found Linton guilty of one count of burglary (count 3) and two counts of receiving stolen property (counts 4 and 5). It found him not guilty of the other two counts of burglary (counts 1 and 2). The trial court suspended imposition of sentence and granted Linton formal probation for a period of three years, subject to his service of one year in local custody. Linton timely file a notice of appeal.
DISCUSSION
I
Substantial Evidence to Support Burglary Conviction
Linton contends the evidence is insufficient to support his conviction of burglary (count 3). He argues there is insufficient evidence to support a finding that he had the intent to commit theft at the time he entered Murray's storage shed.
On appeal, Linton does not challenge his convictions on two counts of receiving stolen property (counts 4 and 5).
A
"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Jones (1990) 51 Cal.3d 294, 314.)
"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" (People v. Jones, supra, 51 Cal.3d at p. 314.) Alternatively stated, "[i]f the circumstances reasonably justify the jury's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding. [Citations.]" (People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
"The same standard applies to the review of circumstantial evidence. [Citation.]" (People v. Ceja, supra, 4 Cal.4th at p. 1138-1139.) Therefore, "[w]hether the evidence presented at trial is direct or circumstantial,... the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Towler (1982) 31 Cal.3d 105, 118-119.)
B
In general, the offense of burglary requires unlawful entry of a building or other specified structure with the specific intent to commit grand or petit larceny (i.e., theft) or any felony. (§ 459; People v. Wallace (2008) 44 Cal.4th 1032, 1077; In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) "[B]urglary based on larceny requires intent to steal on entry [citations]." (People v. Waidla (2000) 22 Cal.4th 690, 734.) A defendant "may be liable for burglary upon entry with the requisite intent to commit a felony or a theft (whether felony or misdemeanor), regardless of... whether any felony or theft actually is committed. [Citations.]" (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042.)
"[T]o constitute burglary, the defendant must intend to commit the theft or felony at the time of entry. [Citation.] However, the existence of the requisite intent is rarely shown by direct proof, but may be inferred from facts and circumstances. [Citation.]" (In re Matthew A., supra, 165 Cal.App.4th at pp. 540-541.) "While the existence of the specific intent charged at the time of entering a building is necessary to constitute burglary in order to sustain a conviction, this element is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence. [Citation.]" (People v. Terry (1962) 202 Cal.App.2d 604, 608; see also People v. Holt (1997) 15 Cal.4th 619, 669.)
C
Linton asserts there is insufficient evidence that at the time he entered Murray's storage shed he had the specific intent to commit theft (i.e., petit or grand larceny). Because the information, the prosecutor's case, and the court's burglary instructions were all based on the theory that Linton entered the shed with the intent to commit theft and not any other offense, we review all of the direct and circumstantial evidence, including evidence regarding Linton's conduct before, during, and after his entry, in determining whether a rational jury could reasonably infer he had the intent to commit theft at the time he entered the shed.
Linton does not contend on appeal that there is insufficient evidence he unlawfully entered a building within the meaning of section 459.
Based on our review of the entire record, we conclude there is substantial evidence to support the jury's finding that Linton had the intent to commit theft at the time he entered Murray's storage shed. On June 8, 2007, Sloan saw Linton standing in front of Murray's storage shed with its door wide open. Linton was cleaning a grill and put it down when he saw her. He had a surprised facial expression and entered the storage shed. He picked up something inside the shed, put it in a bag, carefully closed the shed's door, and walked away carrying the bag and a guitar case. Later that day, she noticed a big hole in the shed's dead bolt and its damaged doorknob. Wilson also noticed the shed's dead bolt had been drilled out and its outside doorknob was damaged. After that incident, Murray found four computers, two large boxes of food, and emergency water were missing from his storage shed. On June 11, Carrizosa saw Linton kneeling down inside a storage unit located about a quarter of a block from Murray's shed. Linton had a battery operated drill next to him. The drill was capable of drilling a hole through a lock. Although Linton told police all of the property in the storage units was his and that he had "found" certain of those items, police later determined many of those items were stolen, including Hahn's laptop computer, iPod, and radio. Hahn's garage studio apartment had been broken into during the previous few days and valuable property was missing.
Based on those facts and circumstances, the jury could reasonably infer Linton had used the battery operated drill to drill a hole through the dead bolt of Murray's storage shed and broke its doorknob. The jury could further reasonably infer that on entering the shed Linton had the specific intent to commit theft (i.e., to permanently take and remove Murray's property from the shed). Furthermore, the fact that items were thereafter found to be missing (i.e., Murray's four computers, two boxes of food, and water) supports a reasonable inference Linton took those items (i.e., actually committed theft) after entering the shed. The inference that Linton actually committed theft after entering the shed supports the inference that he had the intent to commit theft at the time he unlawfully entered the shed. Also, the fact Linton was later found in possession of property stolen from other storage units or apartments provides further support for the inference he entered Murray's shed with the intent to commit theft.
Finally, when Linton saw Sloan watching him outside Murray's shed, he looked "surprised," ceased his activities, and took an item from the shed away in a bag, thereby supporting an inference that Linton exhibited guilt when he was literally "caught in the act" and providing additional support for the jury's inference that he had the intent to commit theft at the time he entered the shed. Based on all of the facts and circumstances of this case, there is substantial evidence to support the jury's finding that Linton had the intent to commit theft at the time he unlawfully entered the shed. There is substantial evidence to support his burglary conviction.
The evidence that Linton stored items not belonging to Murray in Murray's shed does not disprove the inference he took Murray's possessions from the shed and, more importantly, does not disprove he had the intent to commit theft at the time he entered the shed. Rather, that evidence was, at most, some of the evidence for the jury to weigh, along with all of the other facts and circumstances, in determining whether Linton had the requisite intent to commit theft at the time he entered the shed. Furthermore, there was evidence to support an inference he took items from the shed that were not his property. Although there may not have been direct evidence, there was circumstantial evidence to support a reasonable inference he stole items from the shed. The evidence supports findings he broke into the shed by using a drill, took Murray's property (e.g., four computers, two boxes of food, and water missing thereafter), and took an item away in a bag as Sloan watched. The fact Murray's missing property was not found in Linton's storage sheds does not disprove the reasonable inference that Linton took Murray's property from the shed. We are not persuaded by Linton's assertion that the only reasonable inference from the evidence was that he entered Murray's storage shed only to retrieve his own property. We also are not persuaded by his apparent assertion that the only inference from his "surprised" expression when he saw Sloan was merely his reaction to seeing Sloan with her dog at 7:00 a.m. We conclude the evidence is sufficient to support his burglary conviction.
II
Burglary Instructions
Linton contends the trial court erred in instructing on the offense of burglary because it did not instruct sua sponte on the definition of theft.
A
When the trial court informed counsel it intended to instruct on the offense of burglary by using an adapted version of CALCRIM No. 1700, neither counsel objected. Accordingly, the court instructed the jury on the offense of burglary:
"[The defendant] is charged in count one, two and three with burglary. To prove him guilty of this crime, the People must prove that, 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 defendant does not need to have actually committed theft as long as he entered with the intent to do so. The People do not have to prove that the defendant actually committed theft.
"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. [¶] A building's outer boundary includes the area inside a window screen.
"The People allege that the defendant intended to commit theft." (Italics added.)
At about 10:45 a.m. on September 27, 2007 (during the first day of jury deliberations), the jury submitted a note to the trial court containing requests from two separate jurors: "We would like transcript of Ms. Sloan's testimony. Juror #11[.] [¶] We would like the legal definition of the word 'theft[.]' Juror #4[.]" At about 11:10 a.m., the court discussed the jury's note with counsel and its proposed response to the second request. Neither counsel objected to the court's proposed response. The court then gave the jury the following written response to its second request:
"Look at jury instruction #200, Paragraph #7. [¶] Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings." (Italics added.)
The record shows, and the parties agree, the trial court's instructions did not include a specific definition of the word "theft."
At 1:40 p.m., the court reporter began reading back Sloan's testimony, as requested in the jury note. At 1:58 p.m., the reporter concluded reading and the jury resumed its deliberations. At 9:20 a.m. the following day, the jury reached a verdict and found Linton guilty on count 3 (burglary).
B
"[E]ven in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case. [Citations.]" (People v. Montoya, supra, 7 Cal.4th at p. 1047.) The trial court's duty to instruct sua sponte, or on its own motion, includes the duty to instruct on all of the elements of a charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) However, regarding matters that fall outside a court's duty to instruct sua sponte on general principles of law, it is the defendant's obligation to request any clarifying or amplifying instructions. (People v. Estrada (1995) 11 Cal.4th 568, 574; People v. Kimble (1988) 44 Cal.3d 480, 503.) A defendant's "failure to request such a clarifying [or amplifying] instruction at trial, however, waives his claim on appeal. [Citations.]" (People v. Hart (1999) 20 Cal.4th 546, 622.) Alternatively stated, "[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Lang (1989) 49 Cal.3d 991, 1024.)
"The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty understanding the statute without guidance, the court need do no more than instruct in statutory language." (People v. Poggi (1988) 45 Cal.3d 306, 327.) Furthermore, "where the terms 'have no technical meaning peculiar to the law, but are commonly understood by those familiar with the English language, instructions as to their meaning are not required. [Citations.]' [Citation.]" (People v. Howard (1988) 44 Cal.3d 375, 408, quoting People v. Anderson (1966) 64 Cal.2d 633, 639.) Alternatively stated, "[w]hen a word or phrase ' "is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request." ' [Citations.]" (People v. Estrada, supra, 11 Cal.4th at p. 574.) Estrada stated: "A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation.] Thus, as the court in People v. Richie (1994) 28 Cal.App.4th 1347 [34 Cal.Rptr.2d 200] explains, terms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance. [Citation.]" (Estrada, supra, at pp. 574-575.)
C
Linton argues the trial court erred by instructing on the offense of burglary without instructing sua sponte on the definition of "theft," as used in that instruction. As discussed above, the court instructed on the offense of burglary by stating the People must prove that when the defendant entered a building, "he intended to commit theft."
The People initially respond by asserting Linton forfeited the purported instructional error by not requesting an instruction on "theft" because his substantial rights were not affected. However, assuming arguendo the purported instructional error would have affected Linton's substantial rights and therefore he did not forfeit his appellate contention, we nevertheless conclude the trial court correctly instructed on the offense of burglary without specifically instructing sua sponte on the definition of theft.
The trial court's instruction on the offense of burglary in effect paraphrased section 459's language defining burglary in the context of the evidence admitted at trial and the prosecution's theory of entry of a building with the intent to commit theft. An instruction based on the language of a statute defining a crime is generally appropriate and "ordinarily sufficient when the defendant fails to request amplification," especially if "the jury would have no difficulty understanding the statute without guidance." (People v. Poggi, supra, 45 Cal.3d at p. 327.) Based on the evidence and the prosecution's theory, the only possible type of intended theft in this case was theft by larceny. Because we conclude theft by larceny has a commonly understood meaning, we conclude the trial court was not required to instruct sua sponte on the definition of theft by larceny. Alternatively stated, because theft by larceny does not have a technical meaning peculiar to the law that differs from its nonlegal or common understanding, the trial court was not required on its own motion to clarify or amplify the meaning of theft in the context of this case. (People v. Howard, supra, 44 Cal.3d at p. 408; People v. Anderson, supra, 64 Cal.2d at p. 639; People v. Estrada, supra, 11 Cal.4th at pp. 574-575.)
In general, theft by larceny "requires the taking of another's property, with the intent to steal and carry it away. [Citation.]" (People v. Gomez (2008) 43 Cal.4th 249, 254-255, fn. omitted.) "The elements of theft by larceny are: (1) the defendant took possession of personal property owned by someone else; (2) the defendant did so without the owner's consent; (3) when the defendant took the property, he or 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. [Citations.]" (People v. Catley (2007) 148 Cal.App.4th 500, 505.) Those elements of theft by larceny do not differ from the common, everyday understanding of the word "theft." One English language dictionary defines "theft" as "the act of stealing; the wrongful taking and carrying away of the personal goods or property of another; larceny." (Random House Dict. of the English Language (2d ed. 1987) p. 1966.) We presume that definition accurately expresses the common, nonlegal understanding of the word "theft." Comparing that common meaning of the word "theft" with the legal definition of "theft by larceny" as discussed above, we do not discern any significant difference between them. The common meaning of theft includes both of the primary aspects of its legal meaning (i.e., the wrongful taking and carrying away of personal property). (People v. Gomez, supra, 43 Cal.4th at p. 255.) Although the dictionary definition quoted above does not expressly include the intent element of theft, we believe an intent element is implicit within the common meaning of theft.
Section 484 defines the crimes of theft by larceny, embezzlement, and false pretenses. (People v. Gomez, supra, 43 Cal.4th at p. 255, fn. 4.) "Insofar as it defines theft by larceny,... section 484, subdivision (a), provides simply that 'Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another... is guilty of theft.' " (People v. Davis (1998) 19 Cal.4th 301, 304, fn. 1.)
This definition of theft by larceny tracks the language of CALCRIM No. 1800, except that it omits optional language on the third element (i.e., "[or] to remove it from the owner's [or owner's agent's] possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property[.]" (CALCRIM No. 1800; see People v. Avery (2002) 27 Cal.4th 49, 57-58 [the offense of theft by larceny requires an intent to deprive another of property permanently, which intent may be satisfied by an intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment].) Because in the circumstances of this case there was no argument or evidence to support an inference Linton had the intent to take Murray's property for only a limited period of time (as opposed to permanently), that optional language regarding the offense of theft by larceny was not applicable.
We conclude the common, nonlegal meaning of the word "theft" includes the requirement that at the time the personal property of another is wrongfully taken, the defendant intended to deprive its owner of it permanently. That intent element coincides with the intent requirement included in the legal definition of theft by larceny discussed above. Alternatively stated, as the People assert, it is commonly understood that when a person commits theft or "steals" personal property, that person has no intention of returning it to its owner. Unfortunately, theft of personal property has long been so pervasive in our society that almost every person has been a victim, or knows a victim, of a theft. Accordingly, theft is well understood by lay people as the unlawful taking and carrying away of personal property by a person with the intent at that time to permanently deprive its owner of that property. Because that common understanding of "theft" does not differ from the technical, legal definition of theft by larceny, the trial court in this case did not have a duty to instruct sua sponte on the definition of theft, which term was included in its definition of the offense of burglary. (People v. Howard, supra, 44 Cal.3d at p. 408; People v. Anderson, supra, 64 Cal.2d at p. 639; People v. Estrada, supra, 11 Cal.4th at pp. 574-575.)
A different conclusion may be required in a case involving evidence supporting a type of theft other than larceny (e.g., theft by embezzlement), which offense may not be commonly understood and therefore may require further definition, clarification, or amplification by the trial court sua sponte.
Alternatively stated, in the circumstances of this case we conclude the trial court correctly instructed on the general principles of law commonly or closely and openly connected to the facts before the court and necessary for the jury's understanding of the case, and correctly instructed on all of the elements of the offense of burglary. (People v. Montoya, supra, 7 Cal.4th at p. 1047; People v. Cummings, supra, 4 Cal.4th at p. 1311.) To the extent Linton wished any clarification or amplification of the term "theft" as included in the court's definition of burglary, he had the obligation to request clarification or amplification. (People v. Estrada, supra, 11 Cal.4th at p. 574; People v. Kimble, supra, 44 Cal.3d at p. 503.) However, because Linton did not request such a clarifying or amplifying instruction, he has waived that challenge to the court's instruction for purposes of appeal. (People v. Hart, supra, 20 Cal.4th at p. 622.) "A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Lang, supra, 49 Cal.3d at p. 1024.)
The circumstances in this case are not unlike those in People v. Corral (1943) 60 Cal.App.2d 66, which also involved a charged burglary offense. In Corral, the defendant entered a store, took a suit, placed it inside his trousers, and left the store. (Id. at pp. 68-69.) He was charged with burglary for allegedly entering the store with the intent to commit theft. (Id. at p. 68.) The trial court instructed on the offense of burglary using the language of section 459 (i.e., every person who enters any store or other building with intent to commit grand or petit theft is guilty of burglary). (Id. at pp. 70, 72.) On appeal, the defendant argued the trial court erred by not further defining "theft," which purportedly "left [the jury] in ignorance of the precise nature of the intent on defendant's part which must be shown to support a conviction [of burglary]." (Id. at p. 72, italics added.) Corral stated:
"It may well be that in some cases of burglary such an argument would be well taken, but this is not one of them. Only one sort of theft--larceny--was indicated by the evidence, and the showing of defendant's intent to commit that crime is so clear that we do not see how the jury could have had any doubt about it, or misunderstood the instruction. [Citation.]" (People v. Corral, supra, 60 Cal.App.2d at p. 72.)
Therefore, because the evidence could have supported only a finding of intent to commit theft by larceny, Corral concluded the trial court did not err by not further defining the term "theft" as included in its instruction on burglary. (People v. Corral, supra, 60 Cal.App.2d at p. 72.)
Corral further concluded, even had the trial court erred by not further instructing on the term "theft," that error did not cause a miscarriage of justice (i.e., was not prejudicial error). (People v. Corral, supra, 60 Cal.App.2d at p. 72.)
In People v. Smith (1950) 98 Cal.App.2d 723 (disapproved on another ground in People v. Najera (2008) 43 Cal.4th 1132, 1141), the court reached a similar conclusion based on a slightly different instruction on burglary. (Smith, at pp. 728-729.) In Smith, the trial court instructed using section 459's language, including the requirement that the defendant enter the building " ' "with intent to commit grand or petit larceny," ' " (id. at p. 728) and then elaborated: " 'In other words, insofar as this particular case is concerned, the element necessary to be proved is the defendant entered a building with intent to commit larceny. Larceny is stealing....' " (Ibid.) Smith concluded the court correctly instructed on burglary and its requisite intent: "[The instruction] correctly defines the crime of burglary, discusses the elements of entry and of intent to commit theft, and concludes with the reminder that 'It is up to the jury to determine whether or not the defendant entered this building with the intent of stealing, committing larceny.' " (Id. at p. 729.)
Another similar case, cited by the People, is People v. Parson (2008) 44 Cal.4th 332, which also involved a charged burglary offense. (Id. at p. 351.) The trial court apparently instructed on burglary with CALJIC No. 14.50, stating burglary required proof that, at the time of the entry of the dwelling, defendant " 'had the specific intent to steal or take away someone else's property and intended to deprive the owner permanently of such property....' " (Parson, at p. 352.) On appeal, the defendant argued the trial court erred by not instructing on the meaning of the term "steal" or on theft. (Ibid.) Parson concluded: "[T]he word 'steal'... has 'a fixed and well-defined meaning, and is, perhaps, in its common, every-day use and general acceptation, as well understood as any word in the English language.' (People v. Lopez (1891) 90 Cal. 569, 572 [27 P. 427].)" (Id. at p. 352, fn. omitted.) Parson noted: "The word 'steal' is commonly understood as 'the general term implying the taking of another's money, possessions, etc. dishonestly or in a secret or surreptitious manner.' [Citations.] Another common understanding is that to steal means 'to be a thief; practice theft.' ([Citation]; see also Webster's 3d New Internat. Dict. [(2d ed. 1982)] p. 2369 [defining 'theft' as 'the act of stealing' and 'the taking of property unlawfully (as by robbery, embezzlement, fraud)'].)" (Id. at pp. 352-353, fn. 11.) Accordingly, Parson concluded the term "steal" did not require any further clarification by the trial court in instructing the jury on burglary. (Id. at p. 352.) Likewise, Parson concluded the trial court did not err by not instructing sua sponte on the offense of theft (i.e., with CALJIC No. 14.02) because such omitted instructions were not materially different from those actually given by the court (i.e., CALJIC No. 14.50's instructions on burglary). (Parson, at pp. 352-355.) However, to that extent, Parson is inapposite because the trial court in this case used an adapted version of CALCRIM No. 1700 defining burglary without defining theft (or referring to a separate definition of theft, as the full version of CALCRIM No. 1700 provides). Nevertheless, Parson is supportive of our conclusion in this case to the extent it concluded the term "steal" had a common meaning that did not require further clarification or other instruction. In our view, both of the terms "theft" and "steal" have common meanings that generally do not require further clarification when instructing on the offense of burglary.
CALCRIM No. 1700 provides in pertinent part: "To decide whether the defendant intended to commit (theft/ [or] ____ <insert one or more felonies>), please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s]." In this case, the trial court omitted that language from CALCRIM No. 1700 in instructing on the offense of burglary.
We conclude People v. Failla (1966) 64 Cal.2d 560 and People v. Smith (1978) 78 Cal.App.3d 698 are inapposite and do not persuade us to reach a contrary conclusion. Both of those cases involved burglary instructions that included offenses other than theft by larceny. Failla involved an instruction defining burglary as entry of an apartment with intent to commit theft " 'or any felony.' " (Failla, at p. 563.) Failla concluded the trial court erred "in failing to give a further instruction on its own motion defining 'felony' and advising the jury which acts the defendant, upon entry, may have intended to commit [that] would amount to felonies." (Id. at p. 564.) Therefore, Failla did not find instructional error in failing to define the term "theft," but rather in failing to define "felony" and otherwise describing what particular acts (other than theft by larceny) the defendant may have intended to commit that would be felonies. (Ibid.; People v. Parson, supra, 44 Cal.4th at p. 354.) Failla does not require a different result in this case.
The trial court correctly instructed on the general principles of law commonly or closely and openly connected to the facts before the court and necessary for the jury's understanding of the case, and, in particular, correctly instructed on all of the elements of the offense of burglary, including the element of intent to commit theft. (People v. Montoya, supra, 7 Cal.4th at p. 1047; People v. Cummings, supra, 4 Cal.4th at p. 1311.) The court was not required to instruct sua sponte on the definition of "theft" as used in its instruction on the offense of burglary.
Although the trial court did not err in not instructing sua sponte on the definition of theft as used in its burglary instruction in the circumstances of this case, it would have been preferable, or the "better practice," for the court to have given that part of CALCRIM No. 1700, quoted in footnote 9 above, referring to separate instructions and then given CALCRIM No. 1800, which defines the offense of theft by larceny.
D
Linton also asserts the trial court erred by failing to define the term "theft" even after requested to do so by the jury's note. As discussed above, the jury's note requested "the legal definition of the word 'theft[.]' " Rather than instructing with CALCRIM No. 1800 on the offense of theft by larceny, the court referred the jury to an excerpt from its instruction with CALCRIM No. 200. The court restated its instruction: "Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings.' "
As Linton notes, a trial court is required, on request of a deliberating jury, to instruct "on any point of law arising in the case." (§ 1138; People v. Ross (2007) 155 Cal.App.4th 1033, 1047.) However, "[w]here the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) In exercising that discretion, a court "should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (Ibid.)
Because the trial court correctly instructed on the offense of burglary, including the element of intent to commit theft, in the circumstances of this case we, conclude the court did not abuse its discretion by choosing to refer the jury to its instruction with CALCRIM No. 200, rather than providing the jury with CALCRIM No. 1800 or another instruction on the offense of theft by larceny. The trial court could have reasonably concluded the term "theft" in its initial instructions on burglary was sufficiently clear in its ordinary, everyday meaning that no legal or technical definition of theft by larceny would have assisted the jury in its deliberations on the burglary element of intent to commit theft. There is no significant difference between the common meaning of "theft" and the technical, legal definition of theft by larceny. Accordingly, the trial court did not abuse its discretion by instructing the jury to, in effect, apply the ordinary, everyday meaning of the term "theft" in determining whether Linton committed the offense of burglary in the circumstances of this case (i.e., entry of Murray's storage shed with the intent to commit theft).
Although the trial court did not abuse its discretion under section 1138 by not providing a further definition or explanation of theft as used in its burglary instruction, it nevertheless would have been preferable, or the "better practice," for the court to have responded to the jury's request by giving it the definition of theft by larceny as set forth in CALCRIM No. 1800.
E
Linton asserts the trial court's purported errors in failing to instruct, either sua sponte or pursuant to the jury's section 1138 request, were prejudicial and therefore require reversal of his burglary conviction. However, because we concluded above that the court did not err in its instruction on the offense of burglary or in responding to the jury's section 1138 request for the legal definition of "theft," we need not address his claim of prejudicial error. In any event, assuming arguendo the court so erred, we nevertheless would conclude that error was harmless under both the federal and state constitutional standards of prejudice. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
Applying the federal Chapman standard of prejudice, it appears beyond a reasonable doubt that the assumed instructional error did not contribute to the jury's verdict in this case. Had the trial court instructed sua sponte, or in response to the jury's request, on the definition of theft by larceny, we conclude the jury in this case would not have gained any additional insight into the meaning of the term "theft" over what it otherwise understood based on its common, everyday understanding of that term. All of the elements of theft by larceny are included within the common understanding of the term "theft." The jury's note did not show the jury did not understand what constitutes "theft." Rather, the jury's inquiry presumably sought only any legal definition of "theft" that differed from its common, everyday understanding of that term. The trial court's response in effect instructed the jury to apply its common, everyday understanding of that term (which is not significantly different from its technical, legal definition). Even had the court instructed on theft by larceny with CALCRIM No. 1800 or a similar instruction, that additional instruction could not have materially assisted the jury in its determination of Linton's guilt on the burglary charge. Therefore, it appears beyond a reasonable doubt that the assumed instructional error did not contribute to the jury's guilty verdict on the burglary charge. (Chapman v. California, supra, 386 U.S. at p. 24.)
Applying the same reasoning as above, we likewise conclude the assumed error was harmless under the state Watson standard of prejudice. Based on our review of the entire record, it is not reasonably probable Linton would have obtained a more favorable verdict on the burglary charge had the trial court instructed on theft by larceny with CALCRIM No. 1800 or a similar instruction. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Corral, supra, 60 Cal.App.2d at p. 72.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.