P. v. Bernal-Delgado

Filed 4/10/07 P. v. Bernal-Delgado CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

An information charged defendant in count 1 with second degree burglary of a locked vehicle (Pen. Code, 459, 460, subd. (b))^[1]and in count 2 with attempted grand theft of an automobile ( 487, subd. (d), 664). Defendant pleaded not guilty and a jury convicted of him second degree burglary and acquitted him of attempted grand theft of an automobile. Defendant contends that the trial court erred in failing to instruct sua sponte on tampering with a vehicle and in refusing to give defendants requested pinpoint instruction on intoxication. Additionally, defendant argues that his trial counsel provided him with ineffective assistance of counsel when, after final argument was completed, his attorney declined the trial courts offer to instruct the jury on intoxication. We affirm the judgment.

BACKGROUND

On December 6, 2005, an information was filed against defendant charging him in count 1 with second degree burglary of a vehicle ( 459, 460, subd. (b)) and in count 2 with attempted grand theft of an automobile ( 487, subd. (d), 664). Defendant pleaded not guilty.

At trial, Iram S. Martinez testified that on the night of May 23, 2005, he parked his 1984 Chevrolet Corvette across the street from his home in Pittsburg. He locked the car, which had both the original and an aftermarket alarm, prior to entering his home. At that time, the door lock was in good working condition.

Between 4:30 and 5:30 a.m. the next morning, Martinezs sister awakened him and told him that both alarms on his car had sounded. Martinez went to investigate; he discovered that his father and the neighborhood watch commander were already outside standing next to the drivers side of his Corvette. Defendant was in the drivers seat of the car. Martinezs father and neighbor were trying to contact defendant but defendant, according to Martinez, appeared to be under some type of influence.

Martinez knocked on the car window and tried to communicate with defendant. He did not get any response and Martinez believed defendant seemed heavily, heavily under something, under the influence. Martinez stated that defendants words were slurish [sic], his appearance wasnt clean. He smelled like he had beenlike hed been drinking. Martinez stated that defendant would look up occasionally but [i]ts like he was spaced out, in and out. Martinez explained that defendant was trying to start the car with a key that he was putting in the ignition; he was trying to make the key fit.

Officers Daniel Tamori and Joseph Terry arrived in response to a call of an automobile burglary. Martinez told Tamori that he was the owner of the car and that someone he did not know was in his car. Tamori tried to get the attention of defendant. Defendant ignored Tamoris shouting but looked at the officer when he started to rap on the window. The officer believed defendant was trying to start the vehicle. The officer opened the door and told him to get out. Defendant stated that it was his car. Tamori then pulled defendant by his arm out of the car. A set of keys that had been on defendants lap fell to the ground. None of the keys belonged to Martinez.

Once out of the car, defendant was able to stand on his own. The officers placed handcuffs on defendant and defendant had no problem standing. Tamori, who had extensive training on how to determine whether a person is under the influence of controlled substance, did not smell alcohol on defendant.

Tamori examined the drivers side ignition lock cylinder and determined that it had been tampered with. Further, the door lock cylinder was in a horizontal position rather than in the normal vertical position. He tested the lock and found that the tumblers spun freely and that the lock was broken.

The booking process took approximately 30 minutes. During this process, defendant answered all questions correctly and coherently. Officer Tamori stated that, had he observed defendant to be intoxicated, he would have added charges regarding defendants being under the influence of a controlled substance or alcohol. Further, he would have had him checked by a hospital if there was any suspicion that he was under the influence of alcohol or another substance.

Similarly, Officer Terry testified that he had training to recognize the signs and symptoms of alcohol abuse. Terry did not smell alcohol on defendant. He said that Tamori walked defendant to the police vehicle and that defendant was not falling down when escorted to the officers car.

On January 25, 2006, the jury found defendant guilty of second degree automobile burglary and acquitted him of attempted grand theft of an automobile. On February 24, 2006, the trial court suspended imposition of sentence and granted probation for a term of three years on condition that defendant serve 365 days in the county jail.

Defendant filed a timely notice of appeal.

DISCUSSION

I. Trial Courts Duty to Instruct Sua Sponte on Tampering with a Vehicle

Defendant contends that the trial court committed prejudicial error when it failed to instruct the jury sua sponte on tampering with a vehicle (Veh. Code, 10852), as a lesser included offense of burglary ( 459). Vehicle Code section 10852 reads: No person shall either individually or in association with one or more other persons, wilfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner. Section 459 provides in pertinent part: Every person who enters any . . . vehicle as defined by the Vehicle Code, when the doors are locked . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.

An offense is necessarily included in another offense if either the statutory elements of the greater offense or the facts alleged in the accusatory pleading include all of the elements of the lesser offense, so that the greater offense cannot be committed without also committing the lesser. (People v. Sanchez (2001) 24 Cal.4th 983, 988.) Tampering with a vehicle (Veh. Code, 10852) includes any act inconsistent with the ownership of a vehicle, such as entering a locked vehicle without the owners permission. (People v. Mooney (1983) 145 Cal.App.3d 502, 505.) The Mooney court noted that one cannot burgle a vehicle without tampering with it. (Ibid.) This is because burglary is only accomplished by altering the vehicles physical condition; at worst, by smashing a window, at best, by illegally unlocking it. (Ibid.) Accordingly, tampering is a lesser included offense of burglary.
A trial court must instruct sua sponte on a lesser included offense where there is substantial evidence that, if believed by the trier of fact, would absolve the defendant of the greater offense, but not of the lesser. (People v. Memro (1995) 11 Cal.4th 786, 871; People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Waidla (2000) 22 Cal.4th 690, 733.) Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive.   (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) In deciding whether evidence is substantial in this context, a court determines only its bare legal sufficiency, not its weight. (People v. Breverman, supra, at p. 177.)

An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense. (People v. Waidla, supra, 22 Cal.4th at p. 733.) [I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v.] Watson [(1956) 46 Cal.2d 818]. A conviction of the charged offense may be reversed in consequence of this form of error only if, after an examination of the entire cause, including the evidence [citation], it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred [citation]. (People v. Breverman, supra, 19 Cal.4th at p. 178, fn. omitted.)

Defendant contends there was substantial evidence that he was under the influence of alcohol and that he therefore did not have the necessary intent to commit the burglary. Defendant asserts that the jury could have concluded that he was too intoxicated to form the specific intent necessary to commit a burglary, but that he was guilty of the general intent offense of tampering with a vehicle.
Evidence of intoxication . . . can be established in several interrelated ways: (1) eyewitness testimony about a defendants behavior; (2) expert testimony on the predictable pharmacological effects of the ingested substance; (3) evidence of the defendants consumption of inordinate quantities of the intoxicating substance; and (4) the common knowledge of jurors of the effect of the intoxicants. (People v. Kaurish (1990) 52 Cal.3d 648, 696.) In the present case, the only evidence that defendant was intoxicated was Martinezs testimony that defendant appeared to be under the influence of something as well as defendants somewhat bizarre behavior of continuing to try to force his key into the cars ignition and start the car while the alarm sounded and others, including the police officers, were present.

We may assume, without deciding, that there was substantial evidence that defendant was intoxicated. Such evidence, however, was weak. The only evidence was Martinezs testimony that defendant appeared to be under the influence of some type of substance and defendants actions of continuing to attempt to start the car when others were present and while the alarm was going off. However, both officers at the scene, who testified about their training in being able to recognize the signs of intoxication, did not believe that defendant was intoxicated or under the influence of substances. This evidence was supported by the fact that defendant, while in handcuffs, was able to stand and walk to the police car. Further, while being booked, defendant answered questions coherently and clearly. Officer Tamari testified that, had he believed defendant was under the influence of alcohol or any other substance, he would have added charges for that offense and he would have sent him to the hospital to be checked. Tamari did not charge defendant for being under the influence in public and he also did not send him to the hospital to be checked.

Further, there was other evidence that defendant had the specific intent to commit a larceny rather than just tamper with the car. Defendant was carrying several keys and had repeatedly attempted to use one of them to start the Corvette. His repeated attempts to start the car provided strong evidence of specific intent.

Defendant contends that his acquittal of attempted grand theft establishes that the jury believed defendant was too intoxicated to form the specific intent to steal the car, but that he had committed some crime by breaking into the vehicle. Thus, he concludes that, had the jury been given the choice of tampering, it is reasonably possible that the jury would have found him guilty of tampering and not burglary.

We will not speculate as to the meaning of the inconsistent verdict. While [i]nconsistent verdicts . . . present a situation where error has occurred in the sense that the jury has not followed the courts instructions, it is nevertheless unclear whose ox has been gored. (United States v. Powell (1984) 469 U.S. 57, 65.) There is no way of knowing whether it is the inconsistent conviction or acquittal that is erroneous, and consequently it is possible the defendant actually benefited from the error raised on appeal. (Ibid.) It is possible that the jury arrived at an inconsistent conclusion through mistake, compromise, or lenity. (Ibid.) Thus, if a defendant is given the benefit of an acquittal on the count on which he was acquitted, it is neither irrational nor illogical to require him to accept the burden of conviction on the count on which the jury convicted. (Id. at p. 69.)

Defendant argues that United States v. Powell is inapplicable because its holding only applies when the jury is properly instructed. He claims that the case has no application when the instructions were not correct. We disagree. Defendant offers nothing more than speculation that the inconsistent verdicts were the result of the trial courts failure to instruct on vehicle tampering. The court, however, is not to speculate as to the reason for the jurys inconsistency; nor is it to inquire into the jurys deliberations. (United States v. Powell, supra, 469 U.S. at p. 66.) The reasoning of Powell applies to the present case where defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence. . . . (Id. at p. 67)

We conclude that, on this record, if the jury had been instructed on tampering, it is highly unlikely that it would have found defendant guilty of this crime rather than of burglary. Accordingly, the failure to give such an instruction, if error at all, was harmless error.

II. Pinpoint Instruction on Voluntary Intoxication

At trial, defendant requested the trial court to instruct on voluntary intoxication pursuant to CALCRIM No. 3426.^[2] He claimed that evidence of voluntary intoxication raised a reasonable doubt as to whether he formed the requisite specific intent for committing the charged offense. (See, e.g., People v. San Nicolas (2004) 34 Cal.4th 614, 669.) The court denied the request because it found there was minimal evidence to establish that defendant voluntarily or willingly became intoxicated.

[E]vidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, . . . when a specific intent crime is charged. (People v. Horton (1995) 11 Cal.4th 1068, 1118-1119.) An instruction on voluntary intoxication should not be given unless supported by substantial evidence. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355 [A trial court has no duty to instruct the jury on a defenseeven at the defendants requestunless the defense is supported by substantial evidence]; cf. People v. Stanley (2006) 39 Cal.4th 913 946 [Pinpoint instructions must be given on request only when there is evidence to support them].)

Defendant argues that the trial court should not have denied his requested instruction simply because there was little evidence to establish that his possible intoxication was voluntary rather than involuntary. He asserts that the court could have modified the instruction to delete the word voluntary and just instructed the jury about intoxication. Defendant again argues that the inconsistent verdicts suggest that the jury may have believed that defendant was too drunk to form the specific intent necessary to commit a burglary or a theft. We reject this argument for the reasons already discussed in part I., ante.

Defendant claims that the prejudicial effect of the courts refusal to provide the pinpoint instruction was exacerbated when the prosecutor argued and, according to defendant, misstated the law on intoxication during rebuttal closing argument.^[3] The prosecutor argued as follows: In order for something to be wrong with him to negate specific intent, for specific intent to be gone because of something he ingested, because of alcohol, because of narcotics, because of anything, you have to have taken so much, you have to have ingested so much into your body, you have to be so out of your mind, that you cant even understand the crime. Before this code will even recognize it. We dont allow it to be a defense. . . . Later, the prosecutor further argued: Basically, . . . the point of this is you have to be so far out of it to not know youre stealing a car.

At defense counsels request, the trial court did provide the jury with the following instruction: [The prosecutor], in her argument, remarked upon the issue of voluntary intoxication and what she believes the law does or does not provide for as a defense. You are instructed to disregard those remarks and follow only the instructions that I will give you.

Defendant concedes that the foregoing instruction may have cured any prejudice from the statements made by the prosecutor, but he argues that this instruction did not tell the jury that intoxication was relevant to the element of specific intent. We conclude the judges instruction cured any prejudicial effect from the prosecutors improper argument regarding the law of voluntary intoxication.

Even if we presume the pinpoint instruction should have been provided, we conclude for the same reasons discussed in part I., ante, that the failure to give the pinpoint instruction was harmless. As discussed earlier, both police officers testified that they did not believe that defendant was under the influence of alcohol or any substance. Defendant was able to stand and walk without any impairment. Moreover, the officers did not charge defendant for any offense related to being under the influence in public; nor did the officers send him to the hospital to be checked as required when they believe the person being booked is under the influence of alcohol or another substance. Further, defendant answered the officers questions clearly and accurately during the entire booking process. Finally, as already discussed, there was evidence of specific intent as defendant repeatedly tried to use one of his keys to start the Corvette. Accordingly, we conclude that defendant cannot show a reasonable probability that he would have obtained a more favorable verdict had the pinpoint instruction on intoxication been given.

III. Ineffective Assistance of Counsel

Defendant contends that his trial counsel provided ineffective assistance of counsel when she declined the trial courts offer after the prosecutors rebuttal argument to instruct the jury on intoxication.

To prevail on a claim of ineffective assistance of counsel, a defendant must show not only (1) that counsels performance fell below an objective standard of reasonableness under prevailing professional norms, but also (2) that, as a result, the defendant was prejudiced, i.e., there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different. (People v. Benavides (2005) 35 Cal.4th 69, 92-93.) [A] court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsels performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. (Strickland v. Washington (1984) 466 U.S. 668, 697.)

In the present case, for the same reasons set forth in parts I. and II., ante, we conclude that defendant cannot establish any prejudice. As already discussed, it is not reasonably probable that the outcome would have been different had the jury been instructed on involuntary intoxication. There was ample evidence that defendant was not so intoxicated that he could not develop the specific intent as he was carrying keys and was observed trying to force one of his keys into the cars ignition. Finally, the officers testified that they did not believe defendant was under the influence of alcohol or another substance, which was supported by the evidence that defendant was able to stand, walk to the police car, and answer all questions when being booked. We therefore reject defendants claim of ineffective assistance of trial counsel.

DISPOSITION

The judgment is affirmed.

_________________________

Lambden, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

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^[1] All unspecified code sections refer to the Penal Code.

^[2] CALCRIM No. 3426 provides: You may consider evidence, if any, of the defendants voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted [or failed to do an act] with _____ .

A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.

[Do not consider evidence of intoxication in deciding whether _____ was a natural and probable consequence of _____ .]

In connection with the charge of _____ the People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with _____  >. If the People have not met this burden, you must find the defendant not guilty of _____ .