P. v. Stuller

Filed 8/18/06 P. v. Stuller CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

After a jury trial, defendant Craig Stuller was convicted of four felony offenses, including burglary (Pen. Code, § 459),[1] attempted robbery (§§ 664, 211), and two counts of grand theft (§ 487), as well as one misdemeanor offense, battery (§ 242). He was sentenced to two years on the attempted robbery conviction plus a consecutive eight-month sentence on the burglary conviction. The sentence of two years on each of the grand theft convictions was stayed pursuant to section 654, and a concurrent jail term was imposed on the battery conviction.

On appeal, defendant raises nine issues: (1) the evidence was insufficient to support the conviction for attempted robbery; (2) the prosecutor misstated the law concerning attempted robbery; (3) the trial court failed to instruct the jury that the prosecutor had misstated the law concerning attempted robbery; (4) trial counsel was ineffective in failing to object to the prosecutor's misstatement of law concerning attempted robbery; (5) the trial court failed to properly instruct the jury on the elements of attempted robbery; (6) Giving CALJIC No. 2.15, which instructs the jury it may infer guilt of a theft-related crime from the fact the defendant is in possession of recently stolen property where there is additional corroborating evidence, violated defendant's constitutional rights; (7) the trial court failed to instruct the jury under CALJIC No. 2.71 to view defendant's incriminating statement with caution; (8) defendant cannot be convicted of two counts of grand theft under the single larceny doctrine; and (9) the sentences of two years on the attempted robbery conviction and eight months on the burglary conviction violate the section 654 prohibition against multiple punishments.

The People concede that defendant cannot be convicted of two counts of grand theft under the single larceny doctrine, and we find the concession appropriate. We will therefore reverse the judgment of conviction on one count of grand theft. As modified, we will affirm the judgment because, for reasons that we will explain, we find no merit in defendant's remaining contentions.

II. FACTUAL AND PROCEDURAL BACKGROUND

The information charged defendant with committing second degree burglary--entering with intent to commit theft (§§ 459, 460, subd. (b); count 1), attempted robbery in the second degree (§§ 211, 212.5, subd. (c); count 2); theft of personal property valued over $400 (§§ 484, 487, subd. (a); count 3); theft of personal property valued over $400 (§§ 484, 487, subd. (a); count 4); misdemeanor battery (§§ 242, 243, subd. (a); count 5); and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364; count 6). We set forth the facts underlying defendant's offenses in the light most favorable to the judgment. (See People v. Valencia (2002) 28 Cal.4th 1, 4.)

The criminal charges against defendant arose from a series of events that took place in San Jose on March 7, 2005, beginning at the office of Banjara Systems on Forest Avenue. At 4:30 p.m. that day Dennis Ward, the president of Banjara Systems, was in a meeting with Steven Dolan regarding their product. The meeting took place in a large room adjacent to the office that Dolan shared with Ward. After the meeting, the two men returned to their office and discovered that each of their laptop computers was missing. Dolan's laptop had been unplugged from its power cord and mouse, which remained in the office. Only 10 minutes had passed since Dolan had last seen his laptop. Ward later noticed that his laptop bag was also gone.

After Dolan and Ward confirmed that no one in their group had taken their laptops, Ward called the police. Ward also spoke with a person in his office building who told him that a man wearing a black shirt and pants had been asking about Ward's business. Dolan and Ward then initiated a search for the computers outside the Banjara Systems office.

Dolan and Ward began their search by looking out the front door of Banjara Systems to see if anyone â€