D073864 c/w D074639
Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN375998) APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Reversed. Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jay Robert Kratt of one count of burglary (Pen. Code, § 459), for which Kratt is serving a four-year prison sentence.
Kratt contends that the trial court prejudicially erred by responding to a question from the jury during deliberations about whether certain conduct would satisfy the burden of proof for one of the elements of burglary. The People concede that the trial court erred in its response to the jury's question and violated Kratt's constitutional right to due process by creating a mandatory presumption, but they contend that reversal is not required because the error was not prejudicial. We conclude that the trial court's error was not harmless beyond a reasonable doubt, and we accordingly reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 11:20 a.m., on July 28, 2017, Kratt climbed over a locked gate and entered a church in Valley Center, triggering an audible security alarm. No one else was present at the church. Kratt remained inside the church until approximately 12:05 p.m., when deputy sheriffs arrived and removed him from the church's kitchen where they found him "just standing there." When one of the deputies pointed a firearm at Kratt, he said "I give up." Kratt's backpack was in the church restroom underneath the sink. Later Kratt told the deputies that he used a ladder to climb over the locked gate and then found an unlocked door through which he entered the church. Kratt, who is a transient, falsely told the deputies that he was a pastor at the church, and he stated that he went into the church "to get some tea."
One of the church pastors inspected the church after the deputies removed Kratt. Nothing in the church was damaged, stolen or out of place, and there was no evidence that Kratt had "rummaged through" any of the items in the church. One of the deputy sheriffs who removed Kratt from the church stated that no burglary tools were found in the church or in Kratt's possession, and there was no damage to the property. The only thing that the deputy noticed as possibly being out of place was that "in the kitchen there was a water bottle sitting on the counter."
The deputy did not give any further details about the water bottle, including what type of bottle it was, whether it was a still-sealed store-bought water bottle, and whether it contained any water.
Three pastors from the church testified at trial and confirmed that Kratt was not a member of the church and had not been given permission to be there on that date. Only one of the three pastors had previously encountered Kratt. Specifically, a few months earlier in March 2017, when the church was undergoing renovations, that pastor was informed by carpet layers that they saw a man go into the church kitchen. The pastor found Kratt in the kitchen, where he was rummaging through drawers that held kitchen supplies. The pastor told Kratt that he could not be in the kitchen, but that the pastor could give him some food or drink, which Kratt declined. Kratt stated to the pastor that "it's God's kitchen, and anybody can go through it at any time," and "anybody could come and get anything they need from there." Kratt also told the pastor that he was a member of the church and "Pastor Bob" said he could come into the kitchen at any time. The pastor told Kratt that he should not go into the kitchen or anywhere in the church without first coming to the church office.
No "Pastor Bob" works at the church.
Kratt was charged with one count of burglary (Pen. Code, § 459), one count of possession of a controlled substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a)), and one count of possession of paraphernalia used for narcotics (id., § 11364). It was further alleged that Kratt incurred a prison prior (Pen. Code, §§ 667.5, subd. (b), 668) and a strike prior (id., §§ 667, subds. (b)-(i), 1170.12, 668). Prior to trial, Kratt pled guilty to the drug-related counts.
A jury trial was held on the burglary counts during which the jury heard the evidence we have set forth above. During closing argument, defense counsel stated that the only element of burglary in dispute was whether Kratt entered the church with the intent to commit a theft as the People alleged. Defense counsel argued that although Kratt told the deputies he went into the church to "get some tea," there was no evidence Kratt made any tea or took anything from the church, and that Kratt's statements to the deputies were nonsensical because he also claimed to be a pastor at the church.
During deliberations, the jury informed the trial court that it was deadlocked. When the trial court inquired whether further deliberations would be fruitful, the foreperson indicated that additional time might be productive. After approximately 15 minutes of additional deliberation, the jury sent the following note:
"If the defendant
1) used the facilities in the bathroom
2) filled a water bottle in the kitchen
does that meet burden of proof for 'intent' for part # 2"
In referring to the "burden of proof for 'intent' for part # 2," the jury was apparently referencing the second element set forth in the jury instruction for burglary, which required the People to prove "2. When [defendant] entered a building, he intended to commit theft." After conferring with counsel, the court responded by handwriting a response of "NO" to the first scenario, and "YES" to the second scenario. In substance, by responding "YES" to the second scenario in the jury's note, the trial court instructed the jury that if the facts showed that Kratt filled a water bottle in the church kitchen, the People had satisfied their burden to prove beyond a reasonable doubt that Kratt entered the church with the intent to commit theft.
In explaining to counsel how it would respond to the jury note, the trial court cited People v. Martinez (2002) 95 Cal.App.4th 581, which held that a defendant who entered a house with the intent to take a shower entered with the intent to commit theft. Specifically, Martinez held that "intending to use the soap, shampoo and hot water of the homeowner constituted an intent to commit a larceny" to support a burglary conviction because "[e]ach of the items to be taken and consumed would have some, albeit slight, intrinsic value." (Id. at p. 586.) The parties disagree on whether a small amount of water taken from a faucet to fill a water bottle would have sufficient intrinsic value to constitute theft under Martinez's holding, similar to using water, soap and shampoo to take a shower. We need not resolve that issue to decide this appeal.
Two minutes after the jury received the trial court's response, it informed the bailiff that it had reached a verdict. The jury found Kratt guilty of burglary.
Kratt admitted his prison prior and his prior strike, and the trial court sentenced Kratt to prison for a term of four years for the burglary count, after striking the prison prior but denying the motion to strike the prior strike. For the drug-related counts, to which Kratt pled guilty, the trial court imposed a sentence of "credit for time served."
On April 6, 2018, Kratt filed a request to recall his prison sentence pursuant to Penal Code section 1170, subdivision (d)(1). On April 17, 2018, Kratt filed a timely notice of appeal of his conviction.
On May 24, 2018, the trial court granted Kratt's request to recall his sentence. In resentencing Kratt, the trial court struck Kratt's prior strike, and it imposed a 365-day jail term with a suspended four-year prison term.
On July 17, 2018, the trial court found that Kratt violated the terms of his probation and imposed the four-year suspended sentence. Kratt appealed from the finding that he violated the terms of probation.
We issued an order consolidating both appeals. In his consolidated appellate briefing, the sole issue Kratt raises concerns the appeal from the burglary conviction.
A. The Trial Court Violated Kratt's Right to Due Process By Erroneously Creating a Mandatory Presumption
Kratt's appeal focuses on the trial court's response to the jury's note. Kratt's primary contention is that the trial court's response to the note was an instruction to the jury creating a mandatory presumption that violated his constitutional right to due process.
"A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. . . . [¶] . . . Such presumptions violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense." (Francis v. Franklin (1985) 471 U.S. 307, 314 (Francis).) "The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense. [Citation] Jury instructions relieving States of this burden violate a defendant's due process rights. [Citation] Such directions subvert the presumption of innocence accorded to accused persons and also invade the truth-finding task assigned solely to juries in criminal cases." (Carella v. California (1989) 491 U.S. 263, 265.)
Kratt argues that "[t]he trial court's response to the jury in this case imposed a mandatory presumption that Kratt's intent was established by an evidentiary fact—specifically, evidence that Kratt filled a water bottle in the kitchen." Further, Kratt points out the presumption created by the trial court's response was not merely a permissive inference, but a mandatory presumption, in that it "told the jurors in no uncertain terms that they should conclude that Kratt entered the church with the intent to steal if the People proved the predicate fact that he filled a water bottle in the church's kitchen." (See Francis, supra, 471 U.S. at pp. 314-315 [in contrast to a mandatory presumption, "[a] permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved" and "violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury"].)
Kratt argues that the trial court's response to the jury's note was erroneous on a second ground, in that it may have led the jury to incorrectly believe that Kratt could be convicted of burglary even if he formed the intent to commit a theft after he entered the church. "In order to be guilty of burglary, an individual must unlawfully enter a dwelling with the intent to commit a theft or any felony. [Citation] A necessary element to this crime is that the intent to commit the theft or felony must exist at the time of entry." (In re Leanna W. (2004) 120 Cal.App.4th 735, 741, italics added.) Kratt argues that by answering "YES" when the jury asked whether the "intent" element of burglary would be satisfied if Kratt filled a water bottle in the kitchen, "the trial court effectively instructed the jury that the intent element of burglary was satisfied by the act of filling a water bottle regardless of when the intent to take the water was formed." (Italics added.) The People do not agree. They point out that the trial court's response to the jury did not expressly state that intent to steal could be formed after Kratt entered the church, and they stress that other instructions plainly informed the jury of the correct law on the elements of burglary. Here, in light of the People's concession that the trial court committed federal constitutional error in creating a mandatory presumption, and our conclusion that the error is prejudicial, we need not and do not determine whether the trial court additionally committed the state-law error of misleading the jury regarding the elements of burglary. --------
The People concede that the trial court erred in creating a mandatory presumption in responding to the jury's note. As the People explain, "Here, there is no dispute that the trial court incorrectly instructed the jury when it responded 'yes' to their question about intent and therefore advised them that if they found appellant filled a bottle with water the intent element for burglary was met. The issue of whether the facts satisfied the intent element for burglary was for the jury to decide." As the People concede, "[a]n instruction that requires the jury to find an elemental fact based on proof of a predicate fact is unconstitutional." B. The Trial Court's Error Was Prejudicial
Although conceding federal constitutional error, the People contend that the trial court's error does not require us to reverse the judgment because the error was not prejudicial, even under the demanding standard for federal constitutional error applicable here. The People acknowledge that because the trial court's error impacted Kratt's federal constitutional rights, we apply the standard for assessing prejudice set forth in Chapman v. California (1967) 386 U.S. 18, 24. Under that standard, an error is prejudicial unless it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Ibid.)
Here, based on the circumstances surrounding the jury's deliberations, we cannot conclude beyond a reasonable doubt that the trial court's erroneous response to the jury's note did not contribute the verdict. As defense counsel explained during closing argument, the only factual issue in dispute was whether Kratt had the intent to commit a theft when he entered the church. Defense counsel acknowledged that Kratt told the deputies that he entered the church to "get some tea," but counsel argued that Kratt's statement did not prove an intent to steal because Kratt did not end up making any tea, and he said other things to the deputies that were nonsensical, including that he was a pastor at the church. Although the jurors could have concluded, based on the evidence, that Kratt entered the church with the intent to take some tea from the church, the jurors apparently were not able to come to a unanimous decision on that factual issue, and the jurors informed the court after approximately three hours of deliberations that they were at a deadlock. The trial court directed the jury to resume deliberations, and after approximately 15 minutes, the jury sent the note to the trial court that is the subject of this appeal. Two minutes after receiving the trial court's erroneous response, the jury reached a verdict. The course of events described above strongly suggests that the trial court's erroneous response to the jury's note caused the jury to break its deadlock and to reach a verdict on the disputed issue of whether Kratt entered the church with the intent to commit a theft.
The People argue that the error was harmless because the evidence that Kratt intended to commit theft when he entered the church was strong based on Kratt's statement to the deputies about getting some tea and because there was no other good reason for Kratt to have entered the church. Accordingly to the People, the jury therefore would have returned a guilty verdict even without the trial court's erroneous creation of a mandatory presumption. We reject the People's argument because it ignores the history of the jury's deliberations. Specifically, shortly before receiving the trial court's response to its note, the jury was deadlocked on the only issue in dispute, namely whether Kratt entered the church with the intent to commit a theft. Thus, regardless of the People's view that the evidence strongly established Kratt's intent upon entering the church, at least some of the jurors evidently did not agree with the People's view of the evidence because they were not able to reach a guilty verdict. Under those circumstances, we cannot conclude that the trial court's error in creating a mandatory presumption was harmless beyond a reasonable doubt. (See People v. Thompkins (1987) 195 Cal.App.3d 244, 251-252 [rejecting the People's contention that the trial court's erroneous response to the jury's question on the issue of premeditation was not prejudicial in light of purportedly strong evidence on the issue, as "the jury was deadlocked prior to the judge's statement," which established that "necessarily, at least one of the jurors was not persuaded by the strength of the prosecution's evidence"]; Bollenbach v. U.S. (1946) 326 U.S. 607, 614 [an erroneous presumption communicated by the trial court to the jury was prejudicial despite the strength of the evidence on that issue because "for seven hours the jury was unable to find guilt . . . , but reached a verdict of guilty . . . five minutes after their inquiry was answered by an untenable legal proposition" and "[i]t would indeed be a long jump at guessing to be confident that the jury did not rely on the erroneous 'presumption' given them as a guide"].)
The People also argue that trial court's erroneous response to the jury's note was harmless because "[t]he exceedingly short time frame points to a jury that had already reached a verdict by the time it had received the court's response." The People arrive at this conclusion based on the assumption that "[t]wo minutes is not enough time to read, consider, vote and advise the court of the verdict." We disagree. Two minutes is ample time to arrive at a verdict if, before sending the note to the trial court, the jurors agreed that they would all be able to reach a guilty verdict if the trial court answered affirmatively regarding either scenario posed in the note. Even if there was some plausibility to the scenario posed by the People about the jury already having reached a verdict, it certainly is not the only possible explanation, or even the most reasonable one. Accordingly, we cannot conclude beyond a reasonable doubt that the jury had already reached a verdict and that that trial court's error in responding to the jury's note accordingly had no impact on the verdict.
The judgment of conviction on the burglary count is reversed.
IRION, J. WE CONCUR: McCONNELL, P. J. BENKE, J.