Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 152145
McGuiness, P.J.
Eric Stanley Primas (appellant) appeals after a jury convicted him of residential burglary (Pen. Code, § 459 ) and the trial court sentenced him to 21 years in state prison. He contends the court (1) erred in denying his request to have the jury instructed “on matters central to his defense”; (2) erred in imposing a five-year enhancement that had not been pled against him; and (3) violated his constitutional rights as set forth in Cunningham v. California (2007) 549 U.S. 270 (Cunningham) by imposing the upper term sentence. We agree with appellant’s second contention and reject the remaining contentions. We therefore affirm the judgment as amended to reflect a total sentence of 16 years.
All statutory references are to the Penal Code.
Factual and Procedural Background
An information filed March 28, 2006, charged appellant with first degree residential burglary (§ 459) and provided notice to him that it was a “serious felony within the meaning of Penal Code Section 1192.7(c).” It alleged appellant had suffered nine prior convictions and had served four prior prison terms. The ninth prior conviction alleged was a second degree robbery (§ 211) committed in 1986 for which appellant “received a sentence of probation . . . .” The information “further alleged as to all charged counts that, having suffered the above prior conviction [the ninth prior conviction], defendant must be sentenced pursuant to Penal Code sections 1170.12[, subd.] (c)(1) and 667[, subd.] (e)(1).”
Jury trial commenced on September 25, 2006. Gerardo Jimenez testified that on November 2, 2005, at about 1:00 p.m., he was working at Rosa’s Garden, a gardening company, when he saw appellant jump over a four-foot high fence into Fidel Guerrero’s backyard. Jimenez knew Guerrero and recognized appellant because appellant used to work for Guerrero. Jimenez watched as appellant pulled and bent a window screen, opened a window, pulled himself through the window into Guerrero’s kitchen, and searched through drawers. Jimenez told his boss, Jorge Guzman, that someone had gone into Guerrero’s house. Guzman called the police. Manuel Gonzales, who also worked at Rosa’s Garden, testified that appellant walked out of Guerrero’s house holding a vacuum cleaner and weed eater and carried the items down a “little street” on the side of Guerrero’s house. Guerrero testified he had not given appellant permission to be inside his house or to take the vacuum cleaner or weed eater.
A police officer testified that he conducted a search based on a description of a suspect. The officer walked up an exterior stairway at the back of an apartment complex located near Guerrero’s house and found appellant lying on the second level landing of the stairway. Appellant was in the middle of the landing, on his back, with his hands on his chest, looking straight up. The officer found a vacuum cleaner and a weed eater in a yard located between the apartment complex and Guerrero’s house.
Norma Ray, Guerrero’s daughter, testified that she had known appellant for about 15 years and that appellant had worked for her father and had stayed at her father’s house on at least ten occasions. She testified that appellant came to her father’s house one or two days before the incident, said he was starting his own gardening business, and asked to borrow a tarp and rope. Her father agreed and helped appellant tie down a load of items into appellant’s truck.
A jury convicted appellant of first degree residential burglary. The trial court found appellant had suffered all of the alleged prior convictions except the seventh prior conviction and found the ninth prior conviction was a strike and a prior serious felony. It imposed the upper term sentence of six years on the burglary count based on the fact that appellant was on probation at the time the current offense was committed, and doubled the term under sections 1170.12, subdivision (c)(1) and 667, subdivision (e)(1). It found appellant had served four prior prison terms and imposed an additional consecutive year for each prior prison term under section 667.5, subdivision (b). Finally, it imposed a five-year enhancement for the ninth prior conviction under section 667, subdivision (a). The total term of imprisonment was 21 years.
Discussion
Jury Instructions
Appellant contends the trial court erred in denying his request to have the jury instructed on “matters central to his defense,” specifically, that he intended to “merely borrow” the vacuum cleaner and weed eater. He argues the court erred in instructing the jury regarding theft with language from the applicable CALJIC instruction, CALJIC 14.03, which refers to a “temporar[y]” taking, rather than language from the applicable CALCRIM instruction, CALCRIM 1800, which does not make such a reference. He argues the court’s refusal to instruct the jury with CALCRIM 1800 “was exacerbated by the court’s subsequent refusal to give [a] pinpoint instruction” that read, “If you have a reasonable doubt as to whether the defendant merely intended to borrow the objects, you must find him not guilty.” The contention is without merit.
Defense counsel stated the pinpoint instruction another way: “If you have a reasonable doubt about whether the defendant intended and then permanently to deprive, or the rest of the language, you must find him not guilty.”
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” ’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) “The trial court must give instructions on every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case. [Citation.] Evidence is ‘substantial’ only if a reasonable jury could find it persuasive. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1200.)
“If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [Citations.]” (People v. Smithey (1999) 20 Cal.4th 936, 963.) “ ‘In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]’ ” (People v. Yoder (1979) 100 Cal.App.3d 333, 338.) “Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation. [Citations.]” (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.)
Here, the trial court instructed that first-degree burglary is an entry of an inhabited house with the intent to commit theft. The court also instructed the jury regarding the definition of theft with the following, modified language from CALJIC 14.03: “Theft is the taking and carrying away of personal property belonging to another, without the owner’s consent, and with the intent to either deprive the owner of it permanently, or to deprive the owner of it temporarily, but for an unreasonable time, so as to deprive him of a major portion of its value or enjoyment.” It did not instruct the jury with the corresponding CALCRIM instruction, CALCRIM 1800, which provides in relevant part: “To prove that the defendant is guilty of [theft], the People must prove that: [¶] 1. The defendant took possession of property owned by someone else; [¶] 2. The defendant took the property without the owner’s . . . consent; [¶] 3. When the defendant took the property (he/she) intended (to deprive the owner of it permanently [or] to remove it from the owner’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); [¶] AND [¶] 4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief.”
CALJIC 14.03 provides: “The specific intent [required] [which is an element of the crime of ___] [and ___] is satisfied by either an intent to deprive an owner permanently of his or her property, or to deprive an owner temporarily, but for an unreasonable time, so as to deprive him or her of a major portion of its value or enjoyment.”
CALCRIM instructions took effect the year the trial in this case took place. (See People v. Thomas (2007) 150 Cal.App.4th 461, 465-466 [the Judicial Council adopted the CALCRIM instructions, effective January 1, 2006].) Although trial courts are “strongly encouraged” to use the CALCRIM instructions, (Cal. Rules of Court, rule 2.1050(e)) “[n]o statute, rule of court, or case mandates the use of CALCRIM instructions to the exclusion of other valid instructions” (People v. Thomas, supra, 150 Cal.App.4th at p. 466).
Although, as appellant points out, CALCRIM 1800 does not use the term “temporarily” as CALJIC 14.03 does, this distinction is immaterial because both instructions adequately instruct a jury that a defendant is guilty of burglary only if he enters with an intent to take property for a period of time that would deprive the owner of “a major portion of” its “value or enjoyment.” (See also People v. Jenkins (1973) 34 Cal.App.3d 893, 899 [the test to be applied when a defendant asserts an instruction should have been given is “whether the jury was fully and fairly instructed on the applicable law”].) In fact, CALJIC 14.03 follows language from People v. Avery (2002) 27 Cal.4th 49, 58 (Avery), in which the California Supreme Court held that “[t]he requirement [intent to feloniously steal], although often summarized as the intent to deprive another of the property permanently, is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment.” (Italics added.) Appellant argues that CALJIC 14.03’s reference to a temporary taking was “likely to confuse the jury into misapplying the law” and convicting him of burglary even though there was evidence that he was “merely borrow[ing]” the vacuum cleaner and weed eater. However, there is no reasonable likelihood the jury was confused by the instruction, which plainly provides that the taking, if not permanent, must be “for an unreasonable time, so as to deprive [the owner] of a major portion of its value or enjoyment.” (See CALJIC 14.03.) “There is no requirement that the jury be instructed in the precise language requested by a party.” (People v. Jenkins, supra, 34 Cal.App.3d at p. 899, citing People v. Clark (1953) 116 Cal.App.2d 219, 224.) The court’s decision to use the CALJIC instruction was not error.
It was also not error for the trial court to deny appellant’s request for a pinpoint instruction that provided: “If you have a reasonable doubt as to whether the defendant merely intended to borrow the objects, you must find him not guilty . . . .” “[A] defendant has a right to an instruction that pinpoints the theory of the defense.” (People v. Mincey (1992) 2 Cal.4th 408, 437.) However, an instruction need not be given if it is potentially misleading or confusing. (See People v. Malone (1988) 47 Cal.3d 1, 55.) Here, the pinpoint instruction was likely to confuse or mislead the jury. Because the instruction did not specify what length of time a defendant may “borrow” an object without being guilty of theft, it potentially conflicted with the principle set forth in Avery, supra, 27 Cal.4th at p. 58, CALJIC 14.03 and CALCRIM 1800, that a defendant is guilty of theft if he intends to take the property for a period of time that would deprive the owner of “a major portion” of its “value or enjoyment.” If the evidence showed appellant entered Guerrero’s house with the intent to “borrow” the vacuum cleaner and weed eater for such a period of time, the jury would have been misled by the pinpoint instruction into believing it was required to acquit appellant. Accordingly, the pinpoint instruction was properly refused.
Five-year Enhancement
Appellant contends the trial court erred in imposing a five-year enhancement that had not been pled against him. We agree.
Section 667, subdivision (a)(1), provides for a five-year enhancement for repeat offenders convicted of a serious felony who have previously been convicted of another serious felony. As used in this section, “serious felony” is defined as any of the felonies listed in section 667.5, subdivision (c), or section 1192.7, subdivision (c). (§ 667, subd. (d).) Section 1192.7, subdivision (c)(19), provides that a “robbery or bank robbery” is a serious felony.
“Due process requires that an accused be advised of the specific charges against him so he may adequately prepare his defense and not be taken by surprise by evidence offered at trial. [Citations.]” (People v. Haskin (1992) 4 Cal.App.4th 1434, 1438.) With respect to enhancements, section 1170.1, subdivision (e), provides that all enhancements must “be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.”
In People v. Hernandez (1988) 46 Cal.3d 194, 197 (Hernandez), superseded by statute on another point as noted by People v. Rayford (1994) 9 Cal.4th 1, 8-9, the California Supreme Court held the trial court erred in imposing a three-year enhancement under section 667.8 (kidnapping for purposes of rape) that had not been pled or proven. Hernandez held: “[S]uch additional term may not be imposed, since a pleading and proof requirement should be implied as a matter of statutory interpretation and must be implied as a matter of due process.” (46 Cal.3d at p. 197.) Noting that the enhancement required not only a rape during a kidnapping, but a specific intent to kidnap for that purpose, Hernandez concluded “[i]t is unnecessary to . . . engage in a harmless-error analysis when defendant’s due process right to notice has been so completely violated.” (Id. at pp. 203-204, 208-209.) People v. Mancebo (2002) 27 Cal.4th 735, 747 (Mancebo), interpreted Hernandez broadly, as “acknowledg[ing] at the threshold that, in addition to the statutory requirements that enhancement provisions be pleaded and proven, a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes.” (Italics added.)
In Mancebo, supra, 27 Cal.4th at pp. 740-741, the California Supreme Court addressed a sentencing error arising from the failure to comply with pleading and proof requirements under the one strike law (§ 667.61). There, the defendant was charged with various sexual offenses against two victims. (Mancebo, supra, 27 Cal.4th at pp. 739-740.) As to each offense, two special circumstances were alleged under the one strike law for one victim—personal firearm use (§ 667.61, subd. (e)(4)) and kidnapping (§ 667.61, subd. (e)(1))—and personal firearm use and tying or binding the victim (§ 667.61, subd. (e)(6)) for the other victim. (Mancebo, supra, 27 Cal.4th at p. 740.) The information also charged appellant with a gun use enhancement (§ 12022.5, subd. (a)). However, the information did not allege a multiple victim special circumstance under section 667.61, subdivision (e)(5). (Mancebo, supra, 27 Cal.4th at p. 740.)
The jury found the defendant guilty as charged and the trial court sentenced him to two terms under the one strike law, a sentence permissible only if at least two special circumstances had been alleged in the accusatory pleading and found true. (See § 667.61, subds. (a), (f).) (Mancebo, supra, 27 Cal.4th at p. 740.) The court also imposed two additional 10-year gun-use enhancements, believing it had the authority to substitute the multiple victim circumstance that there was more than one victim for the gun-use circumstance in order to satisfy the requirement under the one strike law that two special circumstances be pled and proved. (Ibid.)
Mancebo affirmed the one strike sentence but struck the gun use enhancements, reasoning that because the multiple victim circumstance had not been alleged, the gun use special circumstance, which had been alleged, should have been used as one of the two special circumstances required to sentence the defendant under the one strike law, and that the same gun use circumstance could not be used again to impose enhancements. (Mancebo, supra, 27 Cal.4th at pp. 746, 754.) The People argued that the multiple victim circumstance was “effectively pleaded and proved” because the defendant was on notice that he was being charged with committing an offense against two victims. (Id. at p. 744.) Mancebo rejected this argument, concluding the defendant’s due process rights were violated—“not because defendant was never afforded notice that he was being charged with crimes against two victims; he obviously was, and not because defendant was never afforded notice that the One Strike law would apply to his case; again, he was. Sentencing error occurred because defendant was given notice that gun use would be used as one of the two pleaded and minimally required circumstances in support of the One Strike terms, whereafter, at sentencing, the trial court used the unpled circumstance of multiple victims to support the One Strike terms, and further imposed two 10-year section 12022.5(a) enhancements that could otherwise not have been imposed but for the purported substitution.” (Mancebo, supra, 27 Cal.4th at pp. 747, 753.)
Mancebo further held that waiver and estoppel precluded a harmless error analysis: “There can be little doubt that the prosecution understood the One Strike law’s express pleading requirements and knew how to comply with them. . . . [T]he People’s failure to include a multiple-victim-circumstance allegation must be deemed a discretionary charging decision. Not only is this conclusion supported by the record, but respondent does not contend, much less suggest, how the failure to plead the multiple victim circumstance was based on mistake or other excusable neglect. Under these circumstances, the doctrines of waiver and estoppel, rather than harmless error, apply. [Citations.]” (Mancebo, supra,27 Cal.4th at p. 749.)
Here, the information did not provide appellant with notice of either the factual allegations or the statutory basis to support the five-year enhancement. As noted, the information alleged appellant had suffered a second-degree robbery conviction (the robbery conviction) and that “having suffered [that conviction], [he was to] be sentenced pursuant to . . . sections 1170.12(c)(1) and 667(e)(1) [the three strikes law].” The information, however, did not allege that the robbery conviction also constituted a serious felony under sections 667, subdivision (a)(1) and 1192.7, subdivision (c), and that the prosecutor would seek to have the sentence enhanced by five years under those sections. As in Mancebo, the allegation at issue would be difficult to contest; however, because the robbery conviction had been alleged and found true solely for purposes of the three strikes law, the trial court was without authority to also use the conviction as an unpled enhancement. (See Mancebo, supra, 27 Cal.4th at p. 753.)
Sections 1170.12, subdivision (c)(1), and 667, subdivision (e)(1), provide that where a defendant “has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”
Mancebo “acknowledge[d] that where a defendant is charged with and convicted of qualifying sex crimes against two or more victims, it may be difficult to meaningfully contest the truth of a multiple victim qualifying circumstance, whether or not that circumstance has been properly pled . . . .” (27 Cal.4th at p. 752.)
The People concede the information in this case did not advise appellant that his robbery conviction served as a basis for a five-year enhancement, but they attempt to distinguish Mancebo by referring to settlement discussions between the trial judge, the prosecutor and defense counsel in which the judge noted that appellant’s maximum exposure was 21 years, the prosecutor responded, “That’s my calculation,” and defense counsel stated, “Yes.” During that discussion, the judge also told appellant: “I’m not in a position to tell you what [sentence] you’re likely looking at. I’m just in a position to say that the law says, if the judge doesn’t strike that strike prior, you gotta go to prison. Whatever sentence you get for the new charge has got to be doubled, and that could be two, four, or six years. And that strike prior, you also have to get an additional five years that the judge cannot do away with. You can’t get away from that part. [¶] . . . [¶] So, realistically, if you went down, depending on the facts, how they shake out, and more information about you and your background, you could be looking at that 21 at 80 percent.”
The People assert that the above conversation shows that appellant had notice of the prosecution’s intent to impose a five-year enhancement and that an informal amendment was accomplished by way of the comments made by the judge to appellant regarding the risks of proceeding with trial. The three cases on which respondent relies, however, are distinguishable. People v. Sandoval (2006) 140 Cal.App.4th 111, 132-134, for example, rejected the defendant’s argument that an unalleged prior strike should be stricken, because the prosecutor had made an oral amendment to the information to allege the strike in the presence of the defendant and his counsel, and defense counsel had stated she had no objection to the amendment. In the other two cases on which the People rely, the defendants engaged in acts that showed they had consented to an amendment of the information. (See People v. Hensel (1965) 233 Cal.App.2d 834, 839-840 [implied consent to have the information treated as though a lesser, but not included, offense had been charged where the defendant asked the court to reduce his offense to a violation of the lesser offense and he was convicted of the lesser offense and acquitted of the original offense], limited on another ground by People v. Triggs (1973) 8 Cal.3d 884, 890; People v. Rasher (1970) 3 Cal.App.3d 798, 801-803 [defendant’s conduct in requesting certain jury instructions relating to an uncharged offense, and proceeding through trial as though he was defending against that offense, accomplished an informal amendment of the information].)
Here, the prosecution did not orally amend the information as it did in Sandoval. Further, neither appellant’s act of being present while the judge explored settlement opportunities and made a brief reference to “additional five years that the judge cannot do away with,” nor his attorney’s response—“yes”—when the judge noted, without setting forth how the number was calculated, that appellant’s maximum exposure if convicted was 21 years, can be deemed an implied consent to an amendment of the information. “There can be little doubt that the prosecution,” which alleged in the information that burglary “is a serious felony within the meaning of Penal Code Section 1192.7(c),” also knew how to allege the robbery conviction as a serious felony under section 1192.7, subdivision (c), had it intended to do so. (See Mancebo, supra, 27 Cal.4th at p. 749.) Respondent has not asserted, and we cannot say from the record that we are certain, that the prosecution intended to charge appellant with an additional five years for the second degree robbery conviction which had occurred approximately 20 years before the current offense was committed, and for which appellant had “received a sentence of probation.” The prosecution, not the court, has discretion in filing criminal charges, including “ ‘the choice of maximizing the available sentence (including charging of enhancements) to which a defendant might be exposed in the event of conviction [citations] . . . .’ ” (People v. Gonzales (2001) 87 Cal.App.4th 1, 15.) The trial court was without authority to amend the information by commenting on the possibility of an “additional five years,” or to impose an enhancement with which appellant had not been charged.
Cunningham
Appellant contends the trial court violated his constitutional rights as set forth in Cunningham, supra, when it imposed the upper term without a jury determination of the aggravating factor used to support the upper term. We disagree.
In Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 860]), the United States Supreme Court held that California’s procedure for selecting an upper term violated a defendant’s Sixth and Fourteenth Amendment right to jury trial because it gave the judge, not the jury, the authority to find facts that exposed a defendant to an elevated upper term sentence. However, the California Supreme Court held in People v. Black (2007) 41 Cal.4th 799, 816, that a trial court may rely on the fact of a prior conviction to impose an upper term sentence, even when that fact has not been submitted to a jury. Recently, People v. Towne (2008) 44 Cal.4th 63, 70-71, 78-83 (Towne) held that the aggravating circumstance that a defendant served a prior prison term or was on probation or parole at the time the crime was committed also need not be decided by a jury.
Here, it is undisputed that the sole factor upon which the trial court relied in imposing the upper term was that appellant was on probation at the time he committed the current offense. Towne was pending before the California Supreme Court at the time the parties submitted briefing in this case, and the parties agreed that Towne “may soon provide further guidance on this issue [of whether appellant’s right to a jury trial was violated].” Appellant does not assert that his probation status was otherwise an improper basis upon which to impose the upper term. In light of Towne, we conclude the trial court’s reliance on the aggravating circumstance of appellant’s probation status did not violate appellant’s right to a jury trial.
Disposition
The trial court is directed to amend the abstract of judgment to reflect a total prison term of 16 years and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Pollak, J., Siggins, J.