Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Erik Michael Kaiser, Judge. Super.Ct.No. RIF125520
Vicki Marolt Buchanan, 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, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted Javier Murillo, Jr. of one count of first degree burglary, a violation of Penal Code section 459. He appeals, contending that the trial court erred in refusing his request for a continuance to obtain the tape of a 911 call. He also argues that the trial court erred in refusing to give an instruction for the alleged lesser included offense of unlawful entry. Finding no error, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS
Ryan K., age 14 at trial, testified that he was at home on July 28, 2005. He looked out his window and saw a man, not defendant, trying to break the window of his neighbor’s house. He told his sister, Nicole, and she called 911.
Nicole was 18 years old at trial.
Deputy Darrell Jantz testified that he and a partner were dispatched to the scene. As they arrived, they saw a male leaving the house. They told him to stop, but he ran from them. As Deputy Jantz returned to the front door, defendant was leaving the home. The deputy arrested defendant.
Examining the home, the deputies found that several windows and interior and exterior doors had been broken. The interior had been ransacked, but nothing had been taken.
Defendant testified that he went to the home with a friend named Chino. He thought Chino was taking him to a friend’s house. Chino went to the back of the house and then appeared at the front door, inviting defendant to come into the house. According to defendant, he only went into the kitchen to get something to drink from the refrigerator. But there was nothing to drink in the refrigerator, and he didn’t take anything. He denied any intent to steal anything from the house.
The jury found him guilty of burglary.
II. FACTS RELATING TO THE REQUEST FOR A CONTINUANCE
Deputy Jantz interviewed Ryan and his sister, Nicole, but did not mention Nicole in his report. The deputy testified that he omitted references to Nicole because her statement was the same as Ryan’s.
At the beginning of the trial, the prosecutor disclosed that she had interviewed Ryan the previous day and learned, for the first time, that Nicole had also witnessed the break-in. The prosecutor then notified the defense and reinterviewed Ryan and Nicole. A tape of the interview was then given to defense counsel. The prosecutor represented that Nicole’s testimony would merely corroborate Ryan’s, but she also stated that Nicole would testify that she saw two people attempting to break a window.
Defense counsel stated that the defense was aware of Nicole’s existence and had interviewed her previously, but it had prepared its case on the assumption that the prosecution would not call Nicole as a witness because her testimony would be cumulative. Nicole was not listed on the prosecution’s witness list.
The trial court decided that Nicole would not be allowed to testify until defendant’s counsel had reviewed the tape of the recent interview.
After Ryan testified, the court ruled that there was no violation of discovery orders, and that Nicole would be allowed to testify because the prosecution had recently discovered that she was a witness.
Defense counsel then reviewed the tape of the recent interview and represented to the court that Nicole’s statements on the tape were inconsistent with the officer’s testimony, and with the prior interview by the defense investigator. Specifically, Nicole, in her most recent interview, said she had seen two men who went to the neighbor’s window and attempted to break in. In the previous interview by the defense investigator, Nicole had told the investigator that only one person was at the window trying to break in.
Defense counsel requested a continuance, stating that she needed time to transcribe the most recent interview, and to have the investigator present to impeach Nicole’s anticipated trial testimony. She also indicated she would call Deputy Jantz as a defense witness. Defense counsel also noted that, based on the police report, she believed that Ryan had made the 911 call. Since Ryan testified that his sister made the call, defense counsel also asked that she be given time to obtain a copy of the 911 tape to use as possible further impeachment.
The court denied the requested continuance, noting that the defense already had a statement to the defense investigator which it could use to impeach Nicole’s anticipated trial testimony. As to the 911 tape, the trial court noted that the defense counsel could have obtained it at any time before trial.
Nicole testified that she saw two men standing by the neighbor’s window. She then called police. She described what she saw to the 911 operator. She also testified that she was not specifically interviewed by the officer.
On cross-examination, she did not remember telling the defense investigator that there was only one man at the neighbor’s window. The defense investigator was not called to impeach Nicole’s testimony. However, Deputy Jantz was called by the defense and testified that he did interview Nicole at the time of the crime. She told him that she only saw one person at the neighbor’s window. Thus, Nicole’s trial testimony was impeached by the deputy’s testimony.
III. DID THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING
THE CONTINUANCE REQUEST?
The parties agree on the applicable standard of review: “‘“The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion. In the lack of a showing of an abuse of discretion or of prejudice to the defendant, a denial of his motion for a continuance cannot result in a reversal of a judgment of conviction.”’ [Citations.] Entitlement to a midtrial continuance requires the defendant ‘show he exercised due diligence in preparing for trial.’ [Citation.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1105-1106.)
Defendant relies on People v. Carter (1957) 48 Cal.2d 737 (Carter) and People v. Cuccia (2002) 97 Cal.App.4th 785 (Cuccia). In Carter, the trial court denied defendant’s motion to reopen the case to present a significant piece of evidence. (Carter, supra, at pp. 754-755.) Although it was not clear if the motion was to reopen or for a continuance, our Supreme Court stated that a short continuance should have been granted if necessary to allow defendant to present the evidence to the jury. (Id. at p. 755.)
In Cuccia, the appellate court cited Carter and said: “Once the court decided to grant the prosecutor’s request to reopen rebuttal to introduce the signed declaration, fairness dictated--at a minimum--that it also grant defendant a brief continuance so that he could discuss the new evidence with his attorney and testify on surrebuttal.” (Cuccia, supra, 97 Cal.App.4th at p. 794.)
Defendant argues that there was a similar abuse of discretion here because, once the trial court decided that Nicole could testify, it should have granted a short continuance to allow the defense to listen to the 911 tape.
We disagree. The 911 tape was not newly discovered evidence. Even though the defense understood from the police report that Ryan made the 911 call, it could have obtained the tape at any time prior to trial. Although defendant argues that the tape’s potential to contain impeaching material was increased when Nicole was allowed to testify, that potential was present no matter who made the 911 call. In addition, it was not clear that the 911 tape actually contained impeaching evidence, and we agree with the trial court that a continuance was not necessary because the tape could have been obtained and reviewed in preparation for trial.
The trial court also noted that the defense already had Nicole’s original statement to the defense investigator. Since that statement could be used to impeach Nicole, the trial court found that a continuance to obtain the 911 tape was unnecessary.
On cross-examination, Nicole testified that she did not remember telling the defense investigator that there was only one man at the window.
The People state that Nicole was impeached with the inconsistent statement made to the defense investigator. But she was only asked if she told the investigator that there was only one man at the window and she replied that she did not remember. Since the investigator was not called to testify to an inconsistent statement Nicole made to him, she was not impeached by the mere asking of the question. (Evid. Code §§ 769, 770, 780, 1235.)
The defense did not call the investigator to the stand to impeach her, but it did recall Deputy Jantz. Nicole had testified that she was not specifically interviewed by the deputy, but the deputy testified that he did interview her, and she told him that there was only one person by the window. Thus, Nicole was impeached by the introduction of her prior inconsistent statement to the deputy. Since Nicole was impeached, it is also difficult for defendant to show that he would have received a more favorable result if the trial court had granted his request for a continuance. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1549.)
We therefore conclude that defendant has not borne his burden of showing that the trial court abused its discretion in denying his midtrial request for a continuance. (People v. Beeler (1995) 9 Cal.4th 953, 1003.)
IV. FAILURE TO INSTRUCT THE JURY ON UNLAWFUL ENTRY
Defendant contends that the trial court erred in refusing to instruct the jury with Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 2932, Trespass: Entry Into Dwelling. He argues that the trial court erred because unlawful entry is a lesser included offense to the burglary charge.
The trial court said: “The defendant requested [CALCRIM No.] 2932, trespass. The Court refused that instruction on the basis that trespass is not necessarily a lesser-included offense, and whether or not one should give [CALCRIM No.] 2932 depends on how . . . burglary is charged. The instruction is going to indicate that the defendant entered with the intent to commit theft. So therefore that instruction is refused.”
Burglary is defined in section 459: “Every person who enters any house . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.” The elements of burglary applicable in this case are that defendant entered the victim’s home with the intent to commit theft. (CALCRIM No. 1700.) The jury was so instructed.
Unlawful entry is defined in section 602.5: “Every person . . . who enters or remains in any noncommercial dwelling house . . . without consent of the owner . . . is guilty of a misdemeanor.” The elements of unlawful entry applicable here are that the defendant willfully entered the victim’s home without the victim’s consent. (CALCRIM No. 2932.)
Our Supreme Court discussed the relationship between the two crimes in People v. Lohbauer (1981) 29 Cal.3d 364. In that case, after a court trial, the court found defendant not guilty of burglary, but found him guilty of unlawful entry. Defendant appealed, contending that the court lacked jurisdiction to find him guilty of unlawful entry because it was not a necessarily included offense. Our Supreme Court agreed: “It is fundamental that ‘When a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. [Citations.] This reasoning rests upon a constitutional basis: “Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.” [Citation.]’ [Citation.] As to a lesser included offense, the required notice is given when the specific language of the accusatory pleading adequately warns the defendant that the People will seek to prove the elements of the lesser offense. [Citations.] However, even when the charge does not so specify, the requisite notice is nonetheless afforded if the lesser offense is ‘necessarily included’ within the statutory definition of the charged offense; in such event[,] conviction of the included offense is expressly authorized (§ 1159). In this connection[,] we have said that ‘“‘The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’” [Citations.]’ [Citation.] . . . . [¶] The People concede that a violation of section 602.5 (entering a noncommercial dwelling without the consent of the owner) is not a lesser offense which necessarily is included within a violation of section 459 (burglary) under the foregoing test. A burglary may be committed by one who has permission to enter a dwelling. [Citations.]” (Id. at pp. 368-369.)
In People v. Lohbauer, supra, 29 Cal.3d 364, the court considered whether the requisite notice was given by the accusatory pleading. The information in that case charged defendant with a “‘violation of Section 459 [of the Penal Code] . . . in that . . . he entered the house of [victim] . . . with intent to commit theft,’ a felony.” (Id. at p. 368.) The People also agreed “that an unauthorized entry in violation of section 602.5 was not encompassed within the language of the information . . . .” (Id. at p. 369.) The court concluded that, “[b]ecause a violation of section 602.5 was neither charged nor necessarily included within the burglary charge, defendant’s conviction of the lesser offense may not be sustained ‘whether or not there was evidence at his trial to show that he had committed that offense.’ [Citation.]” (Id. at p. 369.)
In People v. Birks (1998) 19 Cal.4th 108, our Supreme Court said: “Like most jurisdictions, California recognizes that an offense expressly alleged in an accusatory pleading may necessarily include one or more lesser offenses. The definition of a lesser necessarily included offense is technical and relatively clear. 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.]” (Id. at pp. 117-118.)
In this case, the People argue that unlawful entry is not a lesser included offense of burglary under the elements test. Defendant agrees, but argues that “the factual allegations of the charge went beyond the statutory elements for burglary and included an additional fact that the entry into the residence was ‘unlawful’, i.e.[,] without consent. That additional factual allegation makes unauthorized entry under section 602.5 a lesser-included offense in this case and there was evidence to support the charge.”
The information here alleged that defendant violated section 459 because he “did wilfully and unlawfully enter a certain building, to wit, an inhabited dwelling house . . . with intent to commit theft and a felony.” “Under the second, or ‘accusatory pleading’ test, we review the information to determine whether the accusatory pleading describes the crime in such a way that if committed in the manner described the lesser must necessarily be committed. [Citation.] The evidence actually introduced at trial is irrelevant to the determination of the status of an offense as lesser included. [Citation.]” (People v. Wright (1996) 52 Cal.App.4th 203, 208.)
The issue here is whether the use of the term “unlawfully enter” in the information was sufficient to make the crime of unlawful entry a necessarily included offense. While the argument is superficially attractive, the fact remains that the language of the information made the phrase “wilfully and unlawfully enter a certain building” subject to the subsequent qualifying phrase “with intent to commit theft and a felony.” It was therefore clear that the charge was burglary and not unlawful entry or trespass. We agree with the People that it was defendant’s intent to steal that made his entry unlawful, not his lack of consent from the homeowner. Accordingly, the information did not charge unlawful entry under the accusatory pleading test, and the trial court did not have a sua sponte duty to give an instruction on unlawful entry.
V. DISPOSITION
The judgment is affirmed.
We concur: Gaut, Acting P.J., Miller, J.