Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CF3731, Francisco P. Briseno, Judge.
Cara DeVito, 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, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant Jorge Arturo Marquez-Ortiz was convicted of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)). On appeal, he contends the court erred in failing to give a sua sponte instruction on loitering or prowling, and that, in the alternative, defendant received ineffective assistance of counsel, because counsel did not request the instruction.
The court did not err in failing to give the instruction and defense counsel did not provide ineffective assistance for failing to ask for the instruction. Only first degree residential burglary was charged, and the offense of loitering or prowling is not a lesser included offense. Therefore, defendant had no entitlement to the instruction. We affirm.
I
FACTS
At about 11:30 p.m. on November 25, 2005, sheriff’s deputy Stephen Brown observed a vehicle driving at a high rate of speed without its headlights on. Brown pulled over the vehicle, which was driven by defendant. He saw no indication that defendant was intoxicated. However, Brown ascertained that defendant’s license was suspended, so he had defendant’s car impounded. At around 12:30 a.m. on November 26, 2005, a second deputy drove defendant to the area of 17th Street and Tustin Avenue in Santa Ana, near where defendant said his girlfriend lived.
Defendant testified that, instead of going to his girlfriend’s house, he went to a convenience store and bought some nachos and hard liquor. He further testified that he decided to walk to his home, at 17th Street and Bush in Santa Ana. He thought it was about a mile or two away. He was eating the nachos and drinking the alcohol while he was walking. Defendant said that after he had been walking for 45 minutes to an hour, he realized that he was lost. He thought maybe 17th Street was about to end, so he turned into a residential neighborhood, in order to find a pay phone.
At some point, he went up the driveway at the home where Lewis Bukovskis lived. Defendant said his purpose was to urinate, which he did at the left side of the driveway, near a wood picket fence. Defendant also said that when he heard a car pull up, we went and hid at the side of the house by the trees, because he did not want to get caught. He also said that, although the garage door was open, he never entered the garage. Defendant claimed he hid because he was embarrassed and scared. Nonetheless, defendant started to walk out the driveway when Bukovskis started walking in. According to defendant, he and Bukovskis met in the middle of the driveway, and he asked Bukovskis if Todd was there. Bukovskis answered in the negative and defendant said he was lost.
Bukovskis testified that he returned home around 1:00 or 1:30 in the morning on November 26, 2005. When he parked his car, his neighbor’s security floodlight came on and lit up the driveway to his home. He noticed that the garage door was open. As he walked up the driveway, he also saw someone coming out of the garage. Bukovskis said that the person had been in the “right-hand side of the middle of the garage,” about five or 10 feet back from the threshold where the door would come down. He also said that the garage was only used for storage, not for parking cars, and that it was full of bicycles, camping equipment, tools, clothes and toys. Per Bukovskis, when he saw defendant in the garage, defendant was near the bicycles.
Bukovskis testified that when the two men met in the driveway, he asked, “What’s up?” According to Bukovskis, defendant asked if Greg was there, and Bukovskis responded in the negative. Bukovskis responded that way for his own protection, hoping defendant would think nothing was wrong and just walk away. Bukovskis observed defendant start running when he got to the end of the driveway.
Bukovskis went in the house, awakened his brother-in-law, and told him what had happened. The two of them left the residence in a truck, in pursuit of defendant. They caught up with defendant at a shopping area and called the police. Defendant was then apprehended.
The jury found defendant guilty of first degree burglary, with a non-accomplice present. The matter of prior convictions was bifurcated. The court found true a prior conviction of a serious felony. It sentenced defendant to eight years, i.e., double the middle term, plus five years for the prior, for a total term of 13 years in state prison. (Pen. Code, § 667, subds. (a)(1), (e)(1).) Defendant appeals.
II
DISCUSSION
Before the jury was instructed, the court inquired as to whether defendant would be requesting jury instructions on any lesser included offenses. Defendant’s counsel replied: “I’m not certain that there really is anything that would be a lesser in this matter other than an . . . attempted [Penal Code section] 459. . . .” The court then asked if defendant wanted that instruction and counsel responded in the affirmative. The court then asked, “Is that the only lesser that you’re asking for?” Counsel replied: “Yes. I don’t think anything else would apply.”
The court instructed the jury on the elements of first and second degree burglary. It also instructed the jury that attempted first degree residential burglary is a lesser included offense of first degree residential burglary. Defendant contends the court erred in failing to give, in addition, a sua sponte instruction on loitering or prowling (Pen. Code, § 647, subd. (h)).
Penal Code section 459 provides in pertinent part: “Every person who enters any house, . . . outhouse or other building, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary. . . .” Penal Code section 460 provides in pertinent part: “(a) Every burglary of an inhabited dwelling house . . . is burglary of the first degree. [¶] (b) All other kinds of burglary are of the second degree. . . .”
Penal Code section 647, subdivision (h) provides: “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: [¶] . . . [¶] (h) Who loiters, prowls, or wanders upon the private property of another, at any time, without visible or lawful business with the owner or occupant. As used in this subdivision, ‘loiter’ means to delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered.”
Defendant says the instruction should have been given because it was his defense that he did not intend to steal or to commit a felony at the residence, but rather, that he only intended to urinate there, and that the failure to give the instruction violated his constitutional right to put on a complete defense. At the same time, he acknowledges that the offense of loitering or prowling is not a lesser included offense of burglary. (People v. West (1980) 107 Cal.App.3d 987, 993; People v. Lopez (1967) 249 Cal.App.2d 93, 102-103.) While a court is required to instruct, sua sponte, on lesser included offenses that are supported by substantial evidence, it is not required to instruct on lesser related offenses. Indeed, it may not instruct on an uncharged lesser related offense without the consent of the prosecution. (People v. Birks (1998) 19 Cal.4th 108, 112-113, 136; People v. Valentine (2006) 143 Cal.App.4th 1383, 1386-1387.)
In People v. Valentine, supra, 143 Cal.App.4th 1383, a case similar to the one before us, the court summed up the matter by stating: “[Defendant] acknowledges that [loitering] is not a lesser included offense of [burglary]. [Defendant] asserts he nonetheless was entitled to the requested instruction because the omission amounted to a failure to instruct on a defense theory — that he [intended to urinate not to steal]. [¶] In essence, [defendant] contends that he has a right to have the jury instructed on the elements of a crime not charged in order to urge the jury that he is not guilty of the charged offense but that he is guilty of something else. It [is not] the law that an accused is entitled to instructions on offenses for which he is not charged in order to urge the jury that he could have been convicted of something other than what is alleged.” (Id. at p. 1387.) “Moreover, the offense of [loitering] is not a defense to [burglary]; rather, it is a theory of criminal liability based on a different offense. Thus, the failure to give the instruction did not impinge on [defendant’s] right to present a defense to [burglary]. It simply reflected the fact that the prosecutor chose not to file on the other charge.” (Id. at p. 1388.)
Defendant argues that, to the extent the court could not have given the instruction sua sponte, his counsel erred in failing to request the instruction. Because there is nothing in the record to show that the prosecutor would necessarily have withheld consent to the instruction, defendant argues he received ineffective assistance of counsel. Defendant cites People v. Mayfield (1993) 5 Cal.4th 142, which provides: “To establish a claim of ineffective assistance under either the federal or state Constitutions, a defendant must show (1) deficient performance under an objective standard of professional reasonableness and (2) prejudice under a test of reasonable probability. [Citations.]” (Id. at p. 175.) Even assuming his trial counsel erred in failing to request the instruction, a matter we need not decide, defendant has not shown that he was prejudiced because the instruction was not given.
In his appellant’s reply brief, defendant moves this court to strike the portions of the People’s brief containing assertions as to what the prosecutor would have done had a request for the instruction been made. This motion is defective for failure to comply with California Rules of Court, rule 8.54(a). Nonetheless, we grant defendant’s alternate request to disregard the unsupported assertions concerning the probable response of the prosecutor, had the instruction been requested.
Here, the jury was instructed that defendant was guilty of burglary if he entered a building and “[w]hen he entered a building, he intended to commit theft. [¶] To decide whether the defendant intended to commit theft, please refer to the separate instructions that I will give you on that crime[]. [¶] A burglary was committed if the defendant entered with the intent to commit theft. . . .” The jury ultimately found that defendant was guilty of burglary. Thus, the jury must necessarily have found that defendant intended to commit theft.
It was up to the jury to weigh defendant’s credibility. (People v. Lacefield (Nov. 28, 2007, B191217) __ Cal.App.4th __ [2007 D.A.R. 17511, 17515].) At trial, defendant admitted that he lied to Brown when he was pulled over. Brown asked defendant if he had ever been arrested, and defendant told him no. In fact, defendant had been convicted in 2004 of the felony offense of recklessly evading police officers, in 1999 of making terrorist threats, and in 1997 of a felony crime involving moral turpitude and of possessing a weapon while concealed in a car. Having heard the evidence, the jury had reason to question defendant’s truthfulness.
The jury necessarily resolved the question of defendant’s intent adversely to him under the instruction pertaining to burglary. Given this, we cannot say that there is a reasonable probability that counsel’s failure to request an instruction on loitering or prowling affected the outcome. (People v. Mayfield, supra, 5 Cal.4th at p. 175; see also People v. Breverman (1998) 19 Cal.4th 142, 164-165, 178.)
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J. ARONSON, J.