Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. VCF222023 of Tulare County Paul A. Vortmann, Judge.
Kari E. Hong, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Gregory Tanner Martin appeals from a sentence of five years in state prison for burglary. He contends that the trial court prejudicially erred by failing to sua sponte instruct on the elements of the theft offense underlying the burglary charge. He also contends that his constitutional right to trial was impaired by the plea bargaining process. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On the morning of May 22, 2009, Kenneth Alfors parked his car in his garage after returning from dropping his children off at school. His wife was inside getting ready for work. Alfors left the garage door open and walked inside his house to get some water for his wife to take to work. When Alfors returned to the garage, he noticed appellant leaning into the driver’s side window of his car. Alfors asked appellant what he was doing. Appellant replied that he was looking for cans. Appellant then tried to leave and Alfors attempted to restrain appellant. Alfors demanded to know why appellant was in the garage and he yelled for his wife to call the police. At that point, Alfors noticed that his wife’s purse, which she usually kept under the passenger seat, was on top of the driver’s seat. Appellant managed to break free and walk away. Alfors then followed appellant for about five blocks until the police arrived and arrested appellant.
On July 22, 2009, the Tulare County District Attorney filed an information charging appellant with first degree burglary (Pen. Code, § 459). It was further alleged that the charged offense was a serious felony (§ 1192.7, subd. (c)), a violent felony (§ 667.5, subd. (c)), and that appellant had served a prior prison term and had five prior felony convictions (§§ 667.5, subd. (b), 1203, subd. (e)(4)).
All further section citations are to the Penal Code, unless otherwise stated.
On July 27, 2009, appellant pled not guilty to all charges and denied all the special allegations.
On September 2, 2009, jury trial began. The jury found appellant guilty of first degree burglary and found true the special allegation that the burglary offense was a violent felony. In a bifurcated trial, the trial court found true appellant’s prison prior.
On September 30, 2009, the trial court denied probation and sentenced appellant to state prison for four years for the burglary offense plus one year for the prison prior enhancement.
On October 1, 2009, appellant filed a timely notice of appeal.
DISCUSSION
A. Separate Instruction on the Offense Underlying Burglary
Appellant contends that the trial court committed reversible error by not including a separate instruction as to the intent required for theft in order to support his burglary conviction. The People concede that the trial court likely had a duty to sua sponte instruct on the intent required for theft because that was an essential part of the crime charged. However, the People assert that the error was harmless beyond a reasonable doubt because the trial court instructed the jury that it could only find appellant guilty if it found that he had entered Alfors’s garage to commit theft. We agree.
“The crime of burglary consists of an act--unlawful entry--accompanied by the ‘intent to commit grand or petit larceny or any felony.’ (§ 459.) One 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 the felony or theft committed is different from that contemplated at the time of entry, or whether any felony or theft actually is committed. [Citations.]” (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042, fn. omitted.) In People v. Failla (1966) 64 Cal.2d 560, the Supreme Court held that “where the evidence permits an inference that the defendant at the time of entry intended to commit one or more felonies and also an inference that his intent was merely to commit one or more misdemeanors or acts not punishable as crimes, the court must define ‘felony’ and must instruct the jury which acts, among those which the jury could infer the defendant intended to commit, amount to felonies. Failure to do so is error, for it allows the triers of fact to indulge in unguided speculation as to what kinds of criminal conduct are serious enough to warrant punishment as felonies and incorporation into the burglary statute.” (Id. at p. 564.)
Here, the trial court instructed the jury that, to find appellant guilty of burglary, it must find that appellant entered Alfors’s garage and when he entered the garage, he intended to commit theft. The jury instruction also stated: “To decide whether the defendant intended to commit theft, please refer to the separate instructions that I will give you on those crimes. [¶] 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.” The trial court, however, did not give separate instructions on theft. Appellant contends that the trial court should have given the jury instructions on the elements of theft because the facts in this case indicated that he might have entered the building with the intent to commit a misdemeanor or other nonfelonious conduct such as vandalism or trespass.
In reviewing whether the trial court erred in failing to instruct the jury, we consider the instructions as a whole to determine if error has been committed; in doing so, we assume that jurors are intelligent people capable of understanding and correlating all instructions that were given. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Even if the trial court erred in not instructing on the felony underlying the burglary offense, we will affirm the judgment if it is harmless under the standard of review set forth in Chapman v. California (1967) 386 U.S. 18, 24, that is, if there is no reasonable probability that a result more favorable to the defendant would have been reached in the absence of the error. (People v. Hughes (2002) 27 Cal.4th 287, 352.)
Here, we conclude that any error was harmless. First, appellant was charged with burglary based upon an underlying offense of theft. Second, the jury was instructed that it could only convict appellant if it found that he had intent to commit theft. Third, there was sufficient evidence to support the jury verdict.
As the Supreme Court noted, the failure to instruct on the offense(s) underlying a burglary charge is erroneous because “it allows the triers of fact to indulge in unguided speculation as to what kinds of criminal conduct are serious enough to warrant punishment as felonies and incorporation into the burglary statute.” (People v. Failla, supra, 64 Cal.2d at p. 564.) Here, the jury was instructed that it could find appellant guilty of burglary only if it found that he had intent to commit theft. The jury was not instructed that it could find appellant guilty of burglary if it found that he intended to commit “any felony, ” vandalism or trespass. We presume that the jury followed the trial court’s instructions. (People v. Musselwhite, supra, 17 Cal.4th at p. 1248.) At trial, the jury was presented with evidence that appellant had moved a purse belonging to Alfors’s wife from underneath the passenger seat of the car to the top of the driver’s seat. This evidence is sufficient to support the jury’s finding that appellant intended to commit theft. In light of the entire record, we conclude that the failure to instruct on the elements of theft was harmless given that the jury convicted appellant for burglary because it found that he had the intent to commit theft when he entered the garage. Thus, there is no reasonable probability that appellant would have received a more favorable result if the trial court had instructed on the elements of the theft offense.
B. Impairment of Exercise of Right to Jury Trial
Appellant also contends that he was punished for exercising his right to a jury trial. According to appellant, on the day of the trial, he was informed that he would receive a four-year sentence if he accepted a plea agreement. However, after he went to trial, the trial court imposed an additional one-year term for the prison prior enhancement despite the recommendation in the probation report that that enhancement should be stayed. Appellant asserts that the trial court imposed the extra year to punish him for going to trial, and that the trial court did not provide an adequate alternative explanation for the sentence. We disagree.
To punish a person for exercising his or her constitutional right to a jury trial constitutes a violation of due process. (In re Lewallen (1979) 23 Cal.3d 274, 278 (Lewallen).) Thus, a court cannot treat a defendant more leniently because he or she foregoes the right to trial or more harshly because he or she exercises that right. (Id. at pp. 278-279.) However, the mere fact that “following trial defendant received a more severe sentence than he was offered during plea negotiations does not in itself support the inference that he was penalized for exercising his constitutional rights.” (People v. Szeto (1981) 29 Cal.3d 20, 35.) Appellant must show that the trial court made some comment or statement that could “reasonably giv[e] rise to the inference that he was penalizing defendant for exercising his right to jury trial.” (Ibid.) In Lewallen, the Supreme Court held that the trial court’s comments showed it was basing the sentence, at least in part, on the defendant’s refusal to plead guilty where the trial court stated, “‘[A]s far as I’m concerned, if a defendant wants a jury trial and he’s convicted, he’s not going to be penalized with that, but on the other hand he’s not going to have the consideration he would have had if there was a plea.’” (Lewallen, supra, at p. 277, italics added.)
Here, there is no evidence that the trial court based the additional one-year enhancement, in whole or in part, on appellant’s refusal to accept a plea agreement. At the sentencing hearing, defense counsel asked the trial court to adopt the probation report’s recommended sentence of four years without the one-year enhancement. The prosecutor stated that the probation report was not “in line with the Court’s indicated sentence” on the day of trial, which was four years if appellant accepted the plea agreement. In response, the trial court stated that:
“Of course, you know, the Court really has the benefit of trial at the time of sentencing, and I don’t punish people because they go to trial. And indicated sentences are made based on information that is presented to the Court at the time we discuss resolution. [¶] The Court always obtains more information during trial, and I clearly have a better understanding at this time than I did when we talked about those things. And I’ve always taken the position that what happened in the past really happened, and it’s based on the information I have at the time of trial on which I issue my judgment and pronouncement of sentence. [¶] I don’t agree with the probation officer’s report and recommendation. It’s my intention to impose the one year of the prior prison [term]. But, I mean, it’s not for the reason that I’m punishing him. It’s because I’m aware of the facts now.”
The trial court did not explain what specific facts that he was aware of at the time of sentencing that he was not aware of prior to trial. However, in the context of the comments, it can be inferred that he was referring to the factual details of the crime that were developed by trial testimony.
On this record, we conclude that it cannot be reasonably inferred that the reason the trial court imposed the additional one-year term was, at least in part, to punish appellant for exercising his right to a jury trial. The trial court’s comments cannot be construed as meaning that the sentence was affected by appellant’s refusal to accept a plea bargain. Furthermore, the disagreement with the probation report’s recommendation does not suggest that the trial court’s motivation was, in whole or in part, to punish appellant for exercising his right to a jury trial. The probation report provides no reason for staying the one-year prison prior enhancement. It lists no mitigating facts relating to the crime and one mitigating fact relating to appellant. In contrast, there is one aggravating fact relating to the crime and five aggravating facts relating to appellant. After weighing these factors, the report recommends the mid-term of four years for the burglary conviction. It can be inferred that the probation officer did not believe that the facts of the crime warranted a five-year sentence; the trial court disagreed. However, the disagreement rationally could be based upon the trial court’s weighing of the one mitigating fact and the six aggravating facts. Therefore, we conclude that appellant has not shown that his sentence was based, in whole or in part, on the trial court’s desire to punish him for exercising his constitutional right to a jury trial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J.POOCHIGIAN, J.