P. v. Carranza
Filed 8/28/07 P. v. Carranza CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. JAVIER JOSE CARRANZA, Defendant and Appellant. | G037557 (Super. Ct. No. 05WF3630) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Javier Jose Carranza of burglary. Carranza entered an apartment through a window, and he stole money and jewelry from one of the bedrooms. On appeal, he contends the trial court erred by failing to give a unanimity instruction. Specifically, he maintains that because the trial court instructed the jury that the burglary could have been committed by one of two distinct entries (entry into the apartment or entry into the bedroom), the trial court was required to instruct the jury it must unanimously agree on which entry constituted the burglary. We find his contention lacks merit and affirm the judgment.
I
Francisco Gonzalez, his wife, and his children rented a two bedroom apartment and they rented out one of the bedrooms to Jose Sanchez. One night, Sanchez befriended Carranza at a bus stop after work. Carranza had just arrived from Mexico and told Sanchez he had no place to stay and needed to make some telephone calls. Sanchez invited Carranza to use the telephone at the apartment, and then later decided Carranza could stay there a few nights. Carranza was never given a key to the apartment, and on his third night there, he was asked to leave. He gathered his personal belongings and left.
Approximately one month later, on Christmas Eve, Carranza returned to the apartment. Nobody was home because Sanchez was working and the Gonzalez family had gone to a neighbors party. Carranza entered the apartment by removing a window pane and the screen. He then turned on the light in the Gonzalezs bedroom and ransacked a jewelry box and several drawers. He took $300 and some jewelry.
Meanwhile, Gonzalez and his daughter returned to their apartment to retrieve some gifts. As Gonzalez was about to open his door, he noticed the nearby window had been tampered with, and there was one light on inside. He remembered he had turned off all the lights and closed the doors and windows before leaving. He found Carranza in his room and asked what he was doing there. Carranza indicated he was looking for a friend, which Gonzalez interpreted as meaning he was looking for Sanchez. Gonzalez called the police. Gonzalez had not given Carranza permission to be inside the apartment.
When police officers arrived at the scene, they noticed Carranza was fidgeting with his shirt before making a pitching motion behind him. One officer searched the area behind Carranza and found three $100 bills. Jewelry belonging to Gonzalezs wife was found in Carranzas pants pocket.
At trial, before closing arguments, the court instructed the jury that in order to find Carranza guilty of burglary, the prosecution had to prove he entered a building or a room within a building; and when he entered a building or a room within the building he intended to commit a theft.
During closing arguments, the prosecution argued Carranza intended to steal at the time he entered the apartment and when he went into the bedroom. To support its contention, the prosecution focused on the fact it was a holiday, Carranza entered through the window because nobody was home, and he was not waiting for Sanchez in his room. Rather, he took valuable items from Gonzalezs room, and then lied to Gonzalez about why he was in the apartment. The prosecution did not suggest the jury could find Carranza guilty of burglary by either entry into the apartment or entry into the bedroom.
Likewise, defense counsel did not make any distinction between the two entry points. Rather, counsel presented the defense Carranza was a tenant and could not be guilty of burglary. Alternatively, defense counsel argued Carranza was only guilty of attempted burglary because he was caught before leaving the bedroom.
The jury concluded Carranza was guilty of first degree burglary, and also found true that at the time he committed the offense, the residence was inhabited. He received a two-year prison sentence.
II
Carranza argues the trial court erred when it failed to instruct the jury sua sponte with the unanimity instruction, CALJIC No. 17.01, Verdicts May Be Based On One Of A Number Of Unlawful Acts.[1] Specifically, Carranza contends Certainly some of the jurors could have believed that [he] entered the apartment with the intent to commit theft. But others could have believed [he] was a tenant, and entered the apartment lawfully but then entered the bedroom with the intent to commit theft. The failure on the part of the trial court to instruct the jury that it must unanimously agree on which entry constituted the burglary was reversible error.
We need not determine whether the trial court erred in refusing to instruct the jury with CALJIC No. 17.01 because any error was harmless even under the more stringent standard articulated in Chapman v.California (1967) 386 U.S. 18.[2] There was no evidence suggesting Carranza entered the apartment or the bedroom for any reason other than to steal. As argued by the Attorney General, the entry points were substantially identical in nature, so that any juror believing one act took place would inexorably believe [both] acts took place. (See People v. Beardslee (1991) 53 Cal.3d 68, 93.) At trial, both the prosecution and the defense wove the two entry points together as one transaction. Accordingly, we are satisfied no juror would have believed Carranza entered the bedroom to steal, but disbelieved he entered the apartment, through a window, on Christmas Eve, without the intent to steal. We conclude beyond a reasonable doubt the jury would have reached the same result if it had been instructed with CALJIC No. 17.01.
III
The judgment is affirmed.
OLEARY, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
FYBEL, J.
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[1] CALJIC No. 17.01 states: The defendant is accused of having committed the crime of _______ [in count _______]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on count _______] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to count _______], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.
[2] We recognize there is currently a split of authority regarding the legal standard to be used to determine whether the failure to give a unanimity instruction is harmless. (Compare People v. Smith (2005) 132 Cal.App.4th 1537, 1545; People v. Vargas (2001) 91 Cal.App.4th 506, 561.) We need not weigh in on the debate as the judgment must be affirmed even applying the higher Chapman standard of review. (Chapman v.California, supra, 386 U.S. 18.)
