Filed 3/16/18 P. v. Sisala CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

KHEN SISALA,

Defendant and Appellant.
D071338



(Super. Ct. No. SCD267694)


APPEAL from a judgment of the Superior Court of San Diego County, Michael T. Smyth, Judge. Affirmed.
Rachel M. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Khen Sisala of residential burglary (Pen. Code, §§ 459, 460, subd. (a)) after he was caught walking out of an apartment he broke into. He argues his conviction must be reversed on four grounds: (1) the prosecution violated Brady v. Maryland (1963) 373 U.S. 83 (Brady) when it failed to disclose recordings from police officers' body-worn cameras before the preliminary hearing; (2) the police failed to preserve evidence regarding his psychological state or intoxication that might have been exculpatory on the issue of his intent to steal; (3) by giving an unmodified version of the voluntary intoxication instruction (CALCRIM No. 3426) with an instruction on consciousness of guilt (CALCRIM No. 362), the court erroneously limited the jury from considering whether intoxication prevented Sisala from knowingly making false statements; and (4) the court should have instructed the jury that trespass was a lesser included offense to burglary. We reject each contention and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 30, 2016, Nicole O. was returning home to her apartment when she saw Sisala walk out her door. She told Sisala to sit down while she called 911, and he complied. Nicole initially thought something was off about Sisala and that he might have been under the influence of drugs. He was talking very fast and was difficult to understand.
San Diego Police Department Officers Bryan Baker and Daniel Eysie arrived within minutes. Baker walked through the apartment with Nicole while Eysie detained and questioned Sisala. It appeared Sisala had entered the apartment from an exterior balcony by forcing the sliding glass door open with a metal handle he had broken off a plastic bucket. He had opened all the cabinets in the kitchen and hallway and opened the bedroom door. But he did not take anything from the apartment, and Nicole said nothing seemed out of place.
In the 10 to 15 minutes he spent with Sisala, Officer Eysie suspected he had psychiatric issues or was under the influence of drugs. Sisala had trouble giving responsive answers, glanced back and forth, and fidgeted. Nevertheless, he complied with Eysie's commands and any communication difficulty may have been attributable to a language barrier. Eysie found a bag containing residue but no usable amounts of drugs. The officers neither placed a psychiatric hold on him nor arrested him for being under the influence.
The People charged Sisala in a one-count information with burglary in violation of section 459. The information alleged the special circumstance that the burglary was committed in a residential dwelling. (§ 460, subd. (a).)
At trial, the prosecution called Nicole, her daughter, and Officer Baker. It played footage from body-worn cameras of the responding officers (BWC) and introduced photographs of Nicole's apartment. Defense counsel called Officer Eysie to testify about Sisala's apparent mental state. In addition, Sisala took the stand and claimed an old woman had asked him to break in, claiming she was locked out. He denied opening any cabinets or doors. Detective Chris Flood testified that Sisala gave a similar account during his police interview.
The jury convicted Sisala of burglary and found true the allegation that he burglarized a residential dwelling. Sisala admitted three prison priors. (§§ 667.5, subd. (b), & 668.) The court struck two priors and sentenced Sisala to a term of five years in state prison.
DISCUSSION
Sisala argues the prosecution violated its Brady obligations before the preliminary hearing and claims the police failed to preserve exculpatory evidence in violation of California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood). He also makes two claims of instructional error: (1) by instructing the jury with CALCRIM Nos. 3426 [voluntary intoxication] and 362 [consciousness of guilt: false statements], the jury was erroneously told it could not consider the effect of intoxication on whether Sisala knowingly made any false statements; and (2) the court should have instructed the jury that trespass was a lesser included offense of burglary. Addressing these contentions in turn, we either find no error or conclude any error was harmless.
1. Brady
Sisala argues his conviction must be reversed because the People failed to disclose BWC footage before the preliminary hearing. As we explain, this contention fails because Sisala does not show the evidence was material or that any Brady violation at the preliminary hearing stage resulted in actual prejudice at trial.
a. Additional background
At the preliminary hearing, the court heard testimony from victim Nicole and viewed five photographs of her apartment. Nicole testified that she saw defendant walk out of her front door as she returned home. Sisala tried to tell her that someone had told him to enter. Nicole told Sisala that she was going to call the police, and he agreed to sit down and wait. Inside the apartment, cabinets were wide open, but nothing was missing. Defense counsel argued there was no proof of intent, but the court found probable cause and ordered Sisala to answer for the crime of residential burglary as charged.
Nineteen days after the preliminary hearing, the prosecution shared the BWC evidence with defense counsel. Defense counsel believed the video to be exculpatory as to Sisala's specific intent for burglary. The video showed Sisala's rambling responses to officer's questions; officers' initial impressions that Sisala was "just crazy" and/or "probably high"; and officers' motivation to find something missing from Nicole's apartment to charge Sisala with the greatest possible offense.
Sisala moved to dismiss the information under Brady, supra, 373 U.S. 83. The People admitted having the BWC evidence before the preliminary hearing but opposed the motion on materiality and prejudice grounds. After viewing the BWC footage, the court denied Sisala's motion, finding no reasonable probability of a different outcome at the preliminary hearing had the footage been previously disclosed. It cautioned that institutionally, the People had to figure out how to get all relevant information produced at an early stage.
b. The BWC evidence was not material
A criminal defendant has a due process right to pretrial discovery of information favorable to his defense. (Brady, supra, 373 U.S. at p. 87.) Regardless of whether the accused requests it, the government has a constitutional duty to disclose both exculpatory evidence that casts doubt on the defendant's guilt and impeaching evidence that calls into question the credibility of government witnesses. (Strickler v. Greene (1999) 527 U.S. 263, 280−282 (Strickler); People v. Williams (2013) 58 Cal.4th 197, 256.) The Brady rule extends even to " 'evidence known only to police investigators and not to the prosecutor.' " (Strickler, supra, at pp. 281−282.) " '[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.' " (Ibid.; Kyles v. Whitley (1995) 514 U.S. 419, 437.) The duty to disclose is ongoing; "information that may be deemed immaterial upon original examination may become important as the proceedings progress ... ." (Pennsylvania v. Richie (1987) 480 U.S. 39, 60.)
The prosecution's Brady obligations apply at the preliminary hearing stage. (People v. Gutierrez (2013) 214 Cal.App.4th 343, 346; Bridgeforth v. Superior Court (2013) 214 Cal.App.4th 1074, 1081 (Bridgeforth).) An accused has the right to disclosure of "evidence that is both favorable and material, in that its disclosure creates a reasonable probability of a different outcome at the preliminary hearing." (Bridgeforth, supra, at p. 1081.) Preliminary hearings are designed to weed out groundless or unsupported charges lacking in probable cause. (Id. at pp. 1086−1087.) "Accordingly, the standard of materiality [for evidence not disclosed pre-preliminary hearing] is whether there is a reasonable probability that disclosure of the exculpatory or impeaching evidence would have altered the magistrate's probable cause determination with respect to any charge or allegation." (Id. at p. 1087.)
On appeal, the defendant bears the burden to establish the elements of a Brady violation. (Strickler, supra, 527 U.S. at pp. 289, 291.) We independently review whether such a violation occurred but give "great weight to any trial court findings of fact that are supported by substantial evidence." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.) Sisala must therefore show the undisclosed information was: (1) "favorable to the accused, either because it is exculpatory, or because it is impeaching," (2) "suppressed" by the government "either willfully or inadvertently," and (3) material. (Ibid.; Strickler, supra, at pp. 281–282.) Information is favorable if it helps the defense or hurts the prosecution. It is material if there is a reasonable probability its disclosure would have changed the result. (People v. Maciel (2013) 57 Cal.4th 482, 551 (Maciel); Kyles, supra, 514 U.S. at p. 435.)
Sisala's claim fails because he does not show the BWC evidence was material. At a preliminary hearing, "the magistrate's role is limited by statute to determining whether or not there is 'sufficient cause' to believe defendant guilty of a public offense." (People v. Uhlemann (1973) 9 Cal.3d 662, 667.) " 'Evidence that will justify a prosecution need not be sufficient to support a conviction. ... An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.' " (Ibid.)
In other words, the question at a preliminary hearing is simply whether there is some rational ground for assuming Sisala committed a residential burglary. This is a low bar. We find no reasonable probability that the BWC footage would have altered the magistrate's probable cause determination. (Bridgeforth, supra, 214 Cal.App.4th at p. 1087.) Using the trial record as a proxy for what Sisala could have introduced at the preliminary hearing, there is at best a factual dispute as to whether Sisala had the requisite intent to steal. This was more than enough to hold Sisala over to answer for the burglary charge and allow the jury to decide whether he acted with the requisite intent. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245 ["Whether the entry was accompanied by the requisite intent [for burglary] is a question of fact for the jury."].)
c. Sisala cannot show prejudice
Even if we were to assume materiality, Sisala's argument fails because he cannot show that any Brady violation at the preliminary hearing prejudiced him at trial. Sisala is correct that because a Brady violation is predicated on materiality, it generally requires reversal without the need for harmless error review. (Maciel, supra, 57 Cal.4th at p. 551.) But a different standard applies for errors at a preliminary hearing.
Errors at preliminary hearing that "are not jurisdictional in the fundamental sense ... require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination." (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529; see People v. Carrington (2009) 47 Cal.4th 145, 178 ["[A] conviction [generally] will not be reversed because of errors or irregularities that occurred at a preliminary hearing ..., absent a showing that the asserted errors 'deprived [the defendant] of a fair trial or otherwise resulted in any actual prejudice relating to [the] conviction.' "].) A Brady violation at a preliminary hearing is not "jurisdictional in the fundamental sense," as that concept is defined. (See People v. Lertner (2010) 50 Cal.4th 99, 139 [" '[A] lack of jurisdiction in its fundamental or strict sense results in " 'an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.' "].)
"The right to relief without any showing of prejudice [is] limited to pretrial challenges of irregularities. At that time, by application for extraordinary writ, the matter can be expeditiously returned to the magistrate for proceedings free of the charged defects." (People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) As the People argue, if Sisala wanted to avoid a showing of prejudice at trial from the prosecution's nondisclosure, he should have sought writ relief before trial. Having failed to do so, he must show he was prejudiced at trial by the delayed disclosure.
The prosecution disclosed the BWC footage 49 days before trial, and it was played for the jury. The defense elicited further testimony from Nicole and the police officers as to Sisala's apparent intoxication or impaired psychological state. Because the challenged evidence was disclosed well before trial, Sisala cannot show that any Brady violation before the preliminary hearing resulted in prejudice.
2. Trombetta/ Youngblood
Sisala argues the trial court erred in denying his motion to dismiss the burglary charge. Citing Trombetta, supra, 467 U.S. 479 and Youngblood, supra, 488 U.S. 51, he claims law enforcement's failure to collect evidence pertaining to his intoxication or psychological state violated due process. As we explain, it is not clear the constitution requires law enforcement to collect potentially exculpatory evidence. To the extent it does, we find no violation under Trombetta and its progeny. Sisala did not show that he could not obtain comparable evidence by other reasonably available means or that officers acted in bad faith in not collecting the evidence.
a. Additional background
At the start of trial, defense counsel moved under Trombetta, supra, 467 U.S. 479 and Youngblood, supra, 488 U.S. 51 to dismiss the burglary charge. Sisala argued his due process rights were violated because police officers should have (1) conducted field sobriety tests, (2) obtained a blood or urine sample, and/or (3) requested a psychological examination based on the officers' observation of Sisala's conduct. He claimed this evidence could have been exculpatory as to whether Sisala harbored an intent to steal.
The court held an evidentiary hearing and heard evidence from Officers Eysie, Baker, and Larry Edgar Turner and Detective Flood. They recalled their initial observations that Sisala appeared intoxicated or psychologically impaired. None of them performed field sobriety tests or collected a urine or blood sample. Nor did anyone call a PERT clinician (Psychiatric Emergency Response Team) to deal with possible psychological issues. Officer Baker explained that he reassessed his views on Sisala after learning more information. Whereas he first believed Sisala broke in to sit on the couch, he later learned that did not happen. Officers Eysie and Turner did not recall Sisala's behavior that day as particularly odd.
The court denied the motion, concluding that although the officers "could have done more," what they did was not unreasonable. It did not believe a blood or urine test and/or mental health evaluation were facially exculpatory. Nor did it find bad faith on the part of the officers in not collecting that evidence.
Sisala renewed his motion at the close of evidence, arguing the prosecution's questioning of Officer Eysie increased the risk of prejudice from failing to preserve exculpatory evidence. The People elicited testimony on cross-examination that Eysie did not arrest Sisala for drug possession or being under the influence or place him on a psychiatric hold. The court explained that it found the issue to be "a lot closer [than anticipated], maybe making it more likely that I erred [in the original denial]." Nevertheless, it did not change its ruling.
b. Sisala challenges a failure to collect evidence, not a failure to preserve it
"The Due Process Clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favorable evidence that is material either to guilt or to punishment." (Trombetta, supra, 467 U.S., at p. 480, citing Brady, supra, 373 U.S. 83.) In Trombetta, the Supreme Court held that due process further requires states to preserve "evidence that might be expected to play a significant role in the suspect's defense." (Trombetta, p. 488; People v. Montes (2014) 58 Cal.4th 809, 837 (Montes).)
We review the denial of a Trombetta motion for substantial evidence. (Montes, supra, 58 Cal.4th at p. 837.) We consider the whole record in the light most favorable to the judgment to determine whether there is evidence of reasonable, credible, and solid value to support the court's decision. (People v. Alvarez (2014) 229 Cal.App.4th 761, 774 (Alvarez).) Reversal is not required simply because the record might also support a contrary finding. (Ibid.)
This case does not involve a failure to preserve evidence that was already gathered. Instead, Sisala contends law enforcement had an affirmative duty to collect evidence that could be exculpatory on the mental state required for burglary. It is not clear that Trombetta and Youngblood even apply to this context; due process does not require law enforcement to collect particular items of evidence. (Youngblood, supra, 488 U.S. at p. 58 [there is no duty "to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution"]; id. at p. 59 ["the police do not have a constitutional duty to perform any particular tests"].)
For example, in People v. Frye (1998) 18 Cal.4th 894, the Supreme Court rejected the defendant's claim that an allegation should have been stricken because law enforcement failed to collect certain crime scene evidence (a bloody slipper, bloodstains, dog hair, and paw prints). Although the failure to collect evidence might justify sanctions against the prosecution at trial, the court held that "as a general matter, due process does not require the police to collect particular items of evidence." (Id. at p. 943.)
Similarly, in Montes, supra, 58 Cal.4th 809, the defendant moved to dismiss on the ground police failed to take a blood sample that could have been used to mount an intoxication defense. (Id. at pp. 836–837.) Affirming the trial court's denial, Montes emphasized that "due process does not require the police to collect particular items of evidence." (Id. at p. 837.) " 'The police cannot be expected to "gather up everything which might eventually prove useful to the defense." ' " (Ibid.)
In light of these authorities, we seriously question whether Trombetta and Youngblood apply to a failure to collect evidence that might have shown drugs in Sisala's system or psychological impairment. Sisala's citation to United States v. Zaragoza-Moreira (9th Cir. 2015) 780 F.3d 971 does not persuade us otherwise; that case involved the destruction of video footage already gathered, not a failure to collect evidence. Sisala claims Montes left open the possibility that in an appropriate case, due process might impose a duty to collect evidence. (Montes, supra, 58 Cal.4th at p. 838.) Even if we accept that proposition, Sisala fails to explain why this is an appropriate case.
c. Sisala's claim fails even if Trombetta and Youngblood apply
Assuming Trombetta and its progeny apply, we find no error. To trigger the duty to preserve, "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Trombetta, supra, 467 U.S. at p. 489.) In Trombetta, law enforcement did not have a duty to preserve breath samples in a driving under the influence case. (Id. at pp. 489–490.) The chances were "extremely low" that preserved samples would have been exculpatory, and the defendant had alternative means to impeach the machine's reliability or measurements. (Ibid.)
Assuming without deciding that a blood or urine sample or psychological evaluation would have been exculpatory, Sisala did not show that the evidence was "of such a nature that [he] would be unable to obtain comparable evidence by other reasonably available means." (Trombetta, supra, 467 U.S. at p. 489.) At trial, he called Officer Eysie to recount his initial impression that Sisala was under the influence of drugs or psychologically impaired. The jury saw BWC footage of Sisala minutes after the offense. Nicole testified about Sisala's strange behavior, and the officers found a bag with possible drug residue on him at the time of his arrest. Moreover, Sisala testified and had the opportunity to tell the jury that he was intoxicated or psychologically impaired at the time of the incident. Defense counsel had ample alternative means to present evidence of Sisala's psychological state or intoxication, negating any violation under Trombetta. (See People v. Chism (2014) 58 Cal.4th 1266, 1300 [no Trombetta violation from failure to preserve defendant's letter where defendant could have cross-examined the recipient or testified about its contents].)
Moreover, Sisala did not show any bad faith on the part of officers that was linked to their failure to conduct tests or gather samples. Where, as here, the defendant's challenge is to "the failure ... to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant," the State's due process duty to preserve evidence is further limited. (Youngblood, supra, 488 U.S. at p. 57.) "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." (Id. at p. 58; accord, People v. Farnam (2002) 28 Cal.4th 107, 166; Montes, supra, 58 Cal.4th at p. 838.) In Youngblood, law enforcement's failure to preserve semen samples did not violate due process because "there was no suggestion of bad faith on the part of the police," even though the samples might have been useful to the defendant's mistaken identity defense. (Youngblood, supra, 488 U.S. at p. 58.) By contrast in Alvarez, the court found bad faith where despite repeated requests by the defendant, officers failed to preserve video footage from police-controlled surveillance cameras. (Alvarez, supra, 229 Cal.App.4th at p. 777.)
Sisala argues that the officers showed bad faith in telling Nicole to check if anything was missing because "he's not that good a person." Although concerning, there is nothing in the record to link that statement in time or context to any decision not to collect a blood or urine sample, conduct a field sobriety test, or obtain a mental health evaluation. Sisala also argues there was bad faith because the officers knew his mental state would be at issue from the outset. But this argument ignores the officers' testimony that they modified their initial assessment as they gathered more information. The trial court reasonably found that officers did not act in bad faith when deciding not to collect evidence regarding Sisala's intoxication or psychological state.
3. Instruction on Voluntary Intoxication
At the close of the evidence, the court and the parties reviewed jury instructions. Over defense counsel's objection, the court stated it would give CALCRIM No. 362 regarding false or misleading statements as indicating consciousness of guilt. A few minutes later, the court asked both sides if they had anything to add. Defense counsel requested the instruction on voluntary intoxication (CALCRIM No. 3426) and mental illness (CALCRIM No. 3428). He did not seek modification of either instruction. The court agreed to provide CALCRIM No. 3426 but not CALCRIM No. 3428.
CALCRIM No. 362 was given as follows:
"If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."

CALCRIM No. 3426 was given as follows:
"You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant entered the residence with the specific intent to commit a theft.

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

"In connection with the charge of residential burglary the People have the burden of proving beyond a reasonable doubt that the defendant acted with the specific intent to commit a theft. If the People have not met this burden, you must find the defendant not guilty of residential burglary.

"You may not consider evidence of voluntary intoxication for any other purpose."

Sisala's main defense at trial was that he lacked the specific intent to steal required for burglary. The jury heard ample evidence that Sisala's voluntary intoxication may have negated specific intent, and defense counsel pressed the theory during closing arguments. (See § 29.4, subd. (b) [evidence of voluntary intoxication is admissible "solely on the issue of whether or not the defendant actually formed a required specific intent ... ."].)
On appeal, Sisala argues the court erred in instructing the jury with both CALCRIM No. 362 and an unmodified version of CALCRIM No. 3426. He claims that as provided, CALCRIM No. 3426 did not permit the jury to consider evidence of voluntary intoxication as to whether Sisala knowingly made any false or misleading statements about the crime. Sisala relies on People v. Wiidanen (2011) 201 Cal.App.4th 526 (Wiidanen), which held that the combination of the two instructions erroneously limited the jury from considering whether the defendant's intoxication prevented him from knowing his statements were false or misleading. (Id. at p. 533.) Another panel of the Wiidanen court subsequently found similar error in providing an unmodified version of CALCRIM No. 3428 [mental illness] with CALCRIM No. 362. (People v. McGehee (2016) 246 Cal.App.4th 1190, 1204−1206.)
We review claims of instructional error de novo. (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.) "Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that, we believe, is however predominantly legal." (People v. Waidla (2000) 22 Cal.4th 690, 733.) "As such, it should be examined without deference." (Ibid.)
As the People argue, Sisala invited the error he now claims. "Under the invited error doctrine, a defendant cannot complain that the court erred in giving an instruction that he requested." (People v. Merriman (2014) 60 Cal.4th 1, 104.) "The invited error doctrine applies when the defendant has made a conscious and tactical choice in asking for the instruction in question." (Ibid., internal quotations omitted.) That is the circumstance here. Defense counsel requested CALCRIM No. 3426 knowing the court would provide CALCRIM No. 362 and did not seek modification. Defendant may not now complain about the inadequacy of the instruction. (Ibid.)
Even if we reached the merits, Sisala does not show prejudice. CALCRIM No. 362 permits but does not require the jury to draw a particular inference. "Permissive inferences violate due process only if the permissive inference is irrational." (People v. Goldsmith (2014) 59 Cal.4th 258, 270; see Wiidanen, supra, 201 Cal.App.4th at p. 533 [to violate due process, the inference must be one that reason and common sense do not justify].) There was no due process violation in Wiidanen because the jury could reasonably infer that the defendant was aware of his guilt when making false statements. (Wiidanen, at p. 534.) He selectively remembered facts that would exculpate him and claimed a hazy memory about neutral facts, suggesting he "knew how to contrive even while allegedly drunk." (Ibid.) For the same reason, there was no prejudice under state law either. (Ibid., citing People v. Watson (1956) 46 Cal.2d 818, 836−837.)
Applying that rubric here, the error was harmless under any standard. When Nicole saw Sisala leave her apartment, he told her "some lady told him they didn't have a key and to go into my house." Officers responded within minutes. Sisala complied with their commands and answered general questions appropriately, but stammered when asked about the incident. In his post-arrest interview, he claimed an elderly lady said she was locked out and asked him to break in. Sisala repeated that story on the stand at trial. But his account could not explain the open cabinets in Nicole's apartment—he denied opening them and speculated during closing arguments that she might just be messy. Here, as in Wiidanen, Sisala's statements shortly after the crime suggest he knew enough to contrive despite any alleged intoxication. The jury could reasonably infer he made knowingly made false statements intending to deceive.
4. Refusal to Instruct on Trespass
During deliberations, Juror 1 asked, "Can a lesser charge be considered in this case?" Juror 9 similarly inquired, "Can we ask for clarification on the law as to why he is being charged with burglary as opposed to a lesser charge? ([I].e. breaking and entering[.])" Defense counsel requested an instruction on aggravated trespass (§ 602.5; CALCRIM No. 2932), arguing it was a lesser related offense to burglary. The court stated it read the jurors' question as asking whether there was a lesser included offense, not a lesser related offense. Defense counsel clarified that "obviously, an aggravated trespass is not a lesser included [offense]" to residential burglary, and it would be accurate to say that there were no lesser included offenses.
The court answered the jurors' question as follows:
"1. There is no lesser charge available for the jury to consider in this case.

"2. The People have charged the defendant with committing the crime of burglary. The jury must decide whether the People have proved the defendant is guilty beyond a reasonable doubt. In addition, if the jury decides the defendant committed a burglary, it must decide whether the People have proved that the burglary was an inhabited dwelling. There is no other offense, lesser or otherwise, for the jury to consider."

Notwithstanding his trial counsel's concession, Sisala contends on appeal that the trial court erred in declining to instruct the jury on trespass as a lesser included offense to burglary. Burglary is committed by any "person who enters any house ... with intent to commit grand or petit larceny or any felony[.]" (§ 459.) Trespass is committed by one "who enters or remains in any noncommercial dwelling house, apartment, or other residential place without consent of the owner, his or her agent, or person in lawful possession ... ." (§ 602.5, subd. (a).)
"[E]ven absent a request, and even over the parties' objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." (People v. Birks (1998) 19 Cal.4th 108, 118 (Birks).) We independently review whether the trial court erred by failing to instruct on a lesser included offense. (People v. Souza (2012) 54 Cal.4th 90, 113.)
There are two tests for determining whether an uncharged crime is a lesser included offense. "Under the elements test, a court determines whether, as a matter of law, the statutory definition of the greater offense necessarily includes the lesser offense." (People v. Parson (2008) 44 Cal.4th 332, 349.) "Under the accusatory pleading test, a court reviews the accusatory pleading to determine whether the facts actually alleged include all of the elements of the uncharged lesser offense; if it does, then the latter is necessarily included in the former." (Ibid.)
The parties agree that trespass is not a lesser included offense to burglary under the statutory elements test but disagree whether it is under the accusatory pleadings test. The information alleged that Sisala "did unlawfully enter a building with the intent to commit theft." Sisala argues that the use of the word "unlawfully" to describe his entry effectively incorporated or charged the crime of trespass, which involves an unlawful entry without consent of the owner. (§ 602.5.) Whereas unlawful entry is not required for burglary, Sisala points out that it is all that trespass requires. (See Birks, supra, 19 Cal.4th at p. 118, fn. 8 [burglary "can be perpetrated without committing any form of criminal trespass"].)
As the People respond, however, Birks is dispositive. Birks explained that trespass is not a lesser necessarily included offense of burglary under either the elements test or the accusatory pleading test. The information alleged that defendant Birks " 'did willfully and unlawfully enter a commercial building ... with intent to commit larceny and any felony.' " (Birks, supra, 19 Cal.4th at p. 118, fn. 8.) These allegations did not necessarily include criminal trespass. (Ibid.)
We are unpersuaded by Sisala's suggestion that Birks "is not the definitive decision on the issue." Although he is correct that Birks decided a different question (whether the trial court had a duty to instruct on trespass as a lesser related offense), its dicta that trespass is not a lesser included offense to burglary has been applied in later cases. (People v. Taylor (2010) 48 Cal.4th 574, 622 ["Trespass is a lesser related crime of burglary."]; People v. Foster (2010) 50 Cal.4th 1301, 1344 ["[T]respass is a lesser related offense, not a lesser included offense, of burglary. [Citations.] ... Regardless of defendant's legal and factual theories concerning how his conduct may have constituted trespass, that potential crime nonetheless remains at most a lesser offense related to (but not included in) the offense of burglary."].) Sisala relies on People v. Waidla, supra, 22 Cal.4th 690, but that case merely assumed "[f]or purposes of discussion only" that trespass was a lesser included offense to burglary under the accusatory pleading test. (Id. at p. 733.) The Supreme Court's later decisions in Taylor and Foster make clear that Waidla's hypothetical discussion was just that.
At best, trespass was a lesser related offense to Sisala's burglary charge, as to which the trial court had no duty to instruct. (Birks, supra, 19 Cal.4th at pp. 136−137.) The court did not err in refusing to instruct the jury on trespass. (Id. at p. 137.)
DISPOSITION
The judgment is affirmed.

DATO, J.

WE CONCUR:


NARES, Acting P. J.



HALLER, J.