P. v. Sebald

Filed 10/25/07 P. v. Sebald CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of County of Riverside, Elisabeth Sichel, Judge. Affirmed as modified.

A jury convicted Joshua Michael Sebald of second degree burglary (Pen. Code,^[1]  459, count 1) and misdemeanor possession of tools with intent to feloniously break or enter into a building ( 466, count 2). The trial court found that he had served two prior prison terms. The court sentenced Sebald to four years in prison.

On appeal, Sebald argues that we must reverse his burglary conviction because: (1) there was insufficient evidence that he entered a "building" as that term is defined for purposes of the burglary statute; (2) the trial court erroneously instructed the jury regarding the legal definition of a building's "outer boundary"; (3) a prosecution witness improperly referenced Sebald's parole status while testifying before the jury; (4) the owner of the burglarized building was erroneously allowed to testify, over a relevance objection, that she incurred $25,000 in damages as a result of the burglary; (5) another witness testified without proper foundation that people often steal copper wiring to finance the purchase of drugs; and (6) Sebald was denied a fair trial because of the cumulative effect of errors at his trial. Sebald also contends that the trial court erred in imposing a sentence for both burglary and possession of burglary tools because, in doing so, the court punished him twice for the same conduct, in violation of section 654.

As discussed in detail below, we reject Sebald's challenges to his conviction. We agree, however, that the trial court's sentence violates section 654, and consequently stay the imposition of sentence for Sebald's conviction for misdemeanor possession of burglary tools.

FACTS

On April 11, 2005, at approximately 12:45 p.m., Sebald approached a closed set of double doors enclosing an "electrical closet" at the rear of a vacant office building located at 3605 Merrill Avenue, in Riverside. Sebald then opened the doors and, using "big cutters," began to cut and grab wiring from inside the closet.

A woman working at a neighboring building, Debbie Jimenez, approached Sebald and asked him what he was doing. Sebald responded that he could "do whatever the fuck [he] want[ed] to do." Jimenez called the police.

Sergeant Mark Rossi arrived at the scene less than five minute after the 911 call and immediately detained Sebald who was still in the area. Sebald was carrying bolt cutters, a hammer, a screwdriver, wire cutters and gloves. Sebald told Rossi he was not burglarizing anything, but was employed to work at the vacant building. Rossi arrested Sebald.

DISCUSSION

I

There Was Sufficient Evidence that Sebald Entered a "Building" Under Section 459

Sebald first contends that the evidence was insufficient to support his burglary conviction because there was no substantial evidence that he entered a "building" under the burglary statute, which defines the crime of burglary as the entry of "any house, room, apartment, . . . shop, warehouse, store, . . . or other building" with the "intent to commit grand or petit larceny or any felony." ( 459, italics added.)

In evaluating a challenge to the sufficiency of the evidence, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence  that is, evidence that is reasonable, credible and of solid value  from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) Reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin).)

Applying the above standard to the evidence in this case, we conclude that there is sufficient evidence to support the jury's verdict that Sebald entered a "building." The witness testimony and photographic evidence presented to the jury could support a reasonable conclusion that the electrical closet into which Sebald entered was an integral part of the larger vacant office "building" into which it was incorporated and, consequently, by entering the electrical closet, Sebald penetrated the outer boundary of a "building" under the statute.^[2]

In defining the outer boundary of a building for purposes of the burglary statute, our Supreme Court has explained that, "in general, the roof, walls, doors, and windows constitute parts of a building's outer boundary, the penetration of which is sufficient" to support a conviction for burglary. (People v. Valencia (2002) 28 Cal.4th 1, 11 (Valencia).) Where the "outer boundary of a building for purposes of burglary is not self-evident," a "reasonable belief test" should be employed. (Ibid.) Under this test, "a building's outer boundary includes any element that encloses an area into which a reasonable person would believe that a member of the general public could not pass without authorization." (Ibid.)

In the instant case, the evidence established that the electrical closet is a substantial, permanent and immobile structure that is built directly into the north wall of the office building, and is sheltered by the walls of that building and a large roof that extends well beyond the electrical closet to an adjacent doorway and other parts of the office building. In addition, the electrical closet consists of a completely enclosed space sheltering electrical fuse boxes and other equipment that service the building to which it is permanently affixed. Finally, the closet's outer wall (consisting, in part, of double doors) is painted the same color as, and can be fairly characterized as a physical extension of the office building's north wall.^[3]

Given the above-described evidence, the jury could reasonably have concluded that the doors to the electrical closet formed the "outer boundary" of the office building and that Sebald's entry through those doors constituted an entry into the office building itself. (See Valencia, supra, 28 Cal.4th at p. 11; In re Amber S. (1995) 33 Cal.App.4th 185, 187 [walls constituting the outer boundary of a building "can take various forms," and " '[t]he proper question is whether the nature of a structure's composition is such that a reasonable person would expect some protection from unauthorized intrusions' "].)

Our conclusion that the evidence is sufficient to sustain Sebald's burglary conviction is supported by longstanding California case law holding that a defendant's felonious entry into a self-contained structure that is permanently affixed to a larger building constitutes a burglary of the larger building itself. For example, in People v. Franco (1926) 79 Cal.App. 682 (Franco), the First District rejected a contention that a defendant's forced entry into a display case, one of five such cases situated "[a]long the walls and sides of [a] stairway" outside a store's entrance, did not constitute a burglary. (Id. at p. 683.) The court explained that because "the roof of the [store] building covers the showcases," the cases were, "in legal effect part of the store proper and the entry of the place where they are situated must be held a sufficient entry to constitute the statutory offense" of burglary. (Id. at p. 684.) Similarly, in People v. Jackson (1933) 131 Cal.App. 605 (Jackson), the Second District rejected the contention that a display case that was "cemented to the floor of the store entrance, within the property line and sheltered by the roof and side walls" was not a part of a building under the burglary statute. (Id. at p. 606.) Rather, the court held that because the display case was "wholly within the premises and under the roof of the main building and actually affixed to the floor of the building" (id. at pp. 606-607), the case "became a part of the store or the building by being so placed, and the store constituted the whole of such building" (id. at p. 607). (See also In re Amber S., supra, 33 Cal.App.4th at p. 187 ["It has long been the rule that a 'building' within the meaning of California's burglary statute 'is any structure which has walls on all sides and is covered by a roof ' "]; People v. Labaer (2001) 88 Cal.App.4th 289, 296 (Labaer) ["The Legislature intended the broadest possible interpretation of 'building' to be used in the context of the burglary statutes"].)^[4]

Finally, in the most recent analogous case, People v. Ravenscroft (1988) 198 Cal.App.3d 639 (Ravenscroft), the Second District held that ATM's "mounted inside the banks and secured flush with the exterior walls of those banks" were "analogous to the showcases in Franco and Jackson," and thus constituted part of a building for purposes of the burglary statute. (Ravenscroft, at pp. 641, 643.) The ATM's at issue in Ravenscroft were, much like the electrical closet here, "firmly affixed and attached to the inside of the bank and are covered by the roofs of the banks," with their physical structure "constitut[ing] a part of the wall of the bank." (Id. at p. 643.)^[5]

In sum, there was sufficient evidence to support the jury's conclusion that Sebald, like the defendants in Ravenscroft, Franco and Jackson, entered a "building" under the burglary statute. Consequently, we reject Sebald's challenge to the sufficiency of the evidence.^[6]

II

The Trial Court's Burglary Instruction, Even If Erroneous, Was Not Prejudicial

As an alternative ground for reversal, Sebald contends that the trial court gave an erroneous instruction to the jury concerning the proper legal standard for assessing the outer boundary of a building. We review this challenge de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.)

The trial court defined the elements of burglary for the jury with a standard jury instruction, CALCRIM No. 1700, which states that to prove burglary, the prosecution must show: "1. The defendant entered a building; AND 2. When he entered a building, he intended to commit theft." To further guide the jury, the court read a bracketed portion of the standard CALCRIM instruction that states, "Under the law of burglary, a person enters a building if some part of his or her body [or some object under his control] penetrates the area inside the building's outer boundary." (CALCRIM No. 1700.)^[7]

In addition to these instructions, the prosecutor also requested, and the court gave, a supplemental instruction that "[a] building's outer boundary includes any element that encloses an area into which a reasonable person would believe that a member of the general public could not pass without authorization." The supplemental instruction was modeled after a second bracketed portion of CALCRIM No. 1700, which states: "A building's outer boundary includes the area inside a window screen," and is a direct quote from our Supreme Court's decision in Valencia, supra, 28 Cal.4th 1, 11.^[8] There was no objection to the supplemental instruction and, in fact, defense counsel stated: "I've reviewed that instruction, and I have no objection to it. I believe it's a correct statement of law"; and then reiterated twice more during colloquies with the court that there was no objection to the instruction.

Despite the absence of any objection at trial, Sebald contends on appeal that the trial court's supplemental instruction "is inapplicable to this situation, and worse, is an incomplete and inaccurate statement of the law." More specifically, Sebald asserts that the instruction was erroneous on two grounds.

First, Sebald argues that the instruction was flawed because it permitted the jury to conclude that the doors providing access to the electrical cabinet were a part of the building's outer boundary. As we have already [concluded] that the jury could permissibly reach that conclusion (see part I, ante), we reject the assertion that the instruction was flawed on this ground.

Second, Sebald contends that instruction was misleading because it allowed the jury to conclude that his entry into the fenced-in parking lot surrounding the building as "an area into which a reasonable person would believe that a member of the general public could not pass without authorization" was sufficient to constitute burglary, regardless of whether he entered the electrical closet. Sebald is correct that as an abstract matter, the instruction was amenable to the construction he now indicates, which could have supplied an improper basis for a burglary conviction. (See In re Amber S., supra, 33 Cal.App.4th at p. 187 ["It has long been the rule that a 'building' within the meaning of California's burglary statute 'is any structure which has walls on all sides and is covered by a roof ' "].) However, even if the instruction is therefore considered erroneous, the error is harmless as it is simply not conceivable, given the evidence presented at trial, that the jury relied upon Sebald's entry into the parking lot for its verdict. (See People v. Frye (1998) 18 Cal.4th 894, 957 [a potentially misleading or confusing instruction constitutes error if " ' "there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution' "].)^[9]

The evidence presented at trial regarding the charged burglary was that in the early afternoon, a person holding a bag (determined by the jury to be Sebald) walked up to the doors to the electrical cabinet, opened those doors and, using a large cutting tool, began grabbing and cutting the wire inside the cabinet. Sebald then informed the arresting officer that he had merely been doing some work on the building. The defense did not dispute that someone had committed the actions described by the witness, but simply contended that Sebald was either misidentified as that person, or that even if he was properly identified, he had acted without criminal intent because the office building was "abandoned." Given this evidence, there was no rational basis for the jury to conclude, and no suggestion at trial, that Sebald entered the parking lot, but not the electrical cabinet. It is therefore inconceivable that the jurors would have based their verdict on this assumption. As a result, even under the most rigorous standard of harmless error review (harmless beyond a reasonable doubt), Sebald was not sufficiently prejudiced by the arguable error in the court's instructions to warrant reversal. (See People v. Flood (1998) 18 Cal.4th 470, 490 [instructional error is subject to harmless error analysis]; Cal. Const., art. VI,  13.)

III

Reversal Is Not Warranted Based on a Witness's Reference to Sebald's Parole Status

Sebald next contends that reversal is required because the trial court abused its discretion in denying his request for a mistrial after a prosecution witness referenced his parole status in front of the jury. We evaluate this contention after setting forth the relevant procedural history.

Toward the end of the case, the prosecution called Police Officer Dennis Causey who collected evidence at the arrest scene as a witness. Within the first few questions of Causey's direct examination, the following colloquy occurred:

"Q. When you responded to [the area of the burglary] what, if anything, did you do . . . ?

"A. What I did when I got there?

"Q. Yes, sir.

"A. Sergeant Rossi had a suspect detained, and Officer Borngrebe interviewed the witness. So what I did was I contacted his parole officer."

The prosecutor then requested a sidebar discussion at which defense counsel moved for a mistrial based on the reference to Sebald's being on parole. The court denied the request, finding that the improper reference to Sebald's parole status was inadvertent based on the "very innocuous" question that elicited the improper comment and the look of "complete surprise" on the prosecutor's face when the answer was given. The court also noted that there was "pretty overwhelming evidence of the defendant's guilt" and that the primary defense that the office building was abandoned would not be influenced by Sebald's parole status. The court determined that the jury, however, had to be instructed to disregard the testimony, and to avoid any further prejudice to Sebald, decided to strike Causey's testimony in its entirety rather than specifically highlighting the offending testimony. Consequently, the court informed the jury that all of Officer Causey's testimony to that point would be stricken and the jury was to "disregard it entirely." After the court's instruction, Causey began his testimony again, and explained his role in collecting and processing the evidence at the arrest scene.

On appeal, Sebald contends that the trial court's failure to grant the motion for a mistrial requires reversal because "the jury may have concluded that a person with a criminal history had the propensity to commit the burglary . . . regardless of a lack of evidence." We disagree.

When improper testimony is presented to the jury, the question of whether the testimony "warrants granting a mistrial or whether the error can be cured by striking the testimony and admonishing the jury rests in the sound discretion of the trial court." (People v. Harris (1994) 22 Cal.App.4th 1575, 1581 (Harris).) " ' "Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." ' " (Ibid.)

Sebald fails to demonstrate an abuse of discretion in the instant case. As the trial court found, the reference to Sebald's parole status was not brought out in bad faith by the prosecutor, whose question "what, if anything, did you do when you got there?" did not call for a response as to Sebald's parole status. In addition, the trial court acted promptly in the face of the disclosure to cure any prejudice, admonishing the officer outside the presence of the jury to refrain from referencing Sebald's parole status, striking the entirety of the officer's testimony to that point and instructing the jury to disregard it. (People v. Cox (2003) 30 Cal.4th 916, 961 [holding, in evaluating prejudicial impact of inappropriate testimony, that "[i]t must be presumed that the jurors acted in accordance with the instruction and disregarded the question and answer"].) Finally, we are particularly reluctant to second-guess the trial court's exercise of discretion because the reference to Sebald's parole status was unlikely to have caused significant prejudice, and certainly did not result in a "miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316 [to demonstrate abuse of discretion, defendant must show that "the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice"].) The reference to Sebald's parole officer was fleeting and brief, and was unrelated to any disputed issue in the case. Further, the evidence of Sebald's guilt, as noted by the trial court, was overwhelming in that he was observed by an apparently unbiased witness grabbing copper wire from the electrical closet and caught, within minutes, leaving the scene in possession of wire-cutting tools. (See Harris, supra, 22 Cal.App.4th at p. 1581 [concluding that reversal was not warranted based on witness's statement that defendant was on parole in light of overwhelming evidence of defendant's guilt]; People v. Jordan (2003) 108 Cal.App.4th 349, 364 [inadvertent provision of police report to jurors that informed them of defendant's parole status did not require reversal because the evidence of guilt was "strong," and the offense for which the defendant was on parole did not suggest a predisposition to commit the charged crime]; People v. Stinson (1963) 214 Cal.App.2d 476, 482, 483 [officer's inappropriate reference to defendant's parole status did not warrant reversal where "the trial court promptly instructed the jury to disregard the offending information," and there was not a reasonable probability that the reference affected the verdict].) In sum, then, in light of the factors discussed above, we conclude that the trial court did not abuse its discretion in declining to grant the defense request for a mistrial.

IV

The Trial Court Did Not Abuse Its Discretion in Permitting Evidence As To Damages Sustained to the Electrical Closet

Sebald contends that the trial court also abused its discretion in allowing the building owner to testify that she suffered $25,000 worth of damages to the electrical closet. We again evaluate this contention after setting forth the pertinent procedural history.

During the direct examination of Sarah Garner, an owner of the vacant office building, the following colloquy occurred:

"Q. Now, in terms of after the incident that took place in April, April 11th of 2005, did you again have to repair the building?

"A. Yes, we have.

"Q. And in terms of the cost, what kinds of costs did you incur in terms of repairing the building?"

Defense counsel objected on relevance grounds and the trial court overruled the objection. Garner then responded: "Well, immediately after the building was broke -- the electrical panel was broken into, we have incurred -- well, I would say just offhand there's $25,000 of damage to that electrical service just for that building. All the main wires were cut and our main switch was pulled out of the panel along with all the breakers and wires."

On appeal, Sebald contends that the trial court abused its discretion in allowing the above testimony because the evidence was irrelevant. Specifically, he contends: "The evidence did not establish a material fact because damages are not an element of burglary."

"[T]he trial court 'has broad discretion in determining the relevance of evidence,' " and a defendant challenging a court's relevance ruling must demonstrate an abuse of discretion to obtain reversal. (People v. Weaver (2001) 26 Cal.4th 876, 933.) Applying this standard, we conclude that Sebald has not demonstrated that the trial court abused its discretion.

The testimony regarding damages to the electrical closet was potentially relevant to two permissible lines of inquiry. (Evid. Code,  210 [" 'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action"].) First, the evidence provided support for the requisite and disputed intent element of burglary that Sebald entered the electrical closet with the intent to commit the theft, rather than some other intent. The jury was aware that Sebald had told an officer during his arrest that he was "working on the business and the owner had known about that," a statement that, if true, required acquittal of burglary, even if Sebald was mistaken in his belief that he was authorized to work on the building. ( 459.) The evidence that Sebald's "work" on the electrical closet resulted in significant monetary damages had at least marginal relevance to undermine the possibility that Sebald believed himself to be or was, in fact, authorized to work on the electrical closet. In addition, testimony that $25,000 of damage had resulted from intrusions into the electrical closet could support an inference that the building was not abandoned, as the defense contended, and that a theft did occur despite the absence, highlighted by the defense at trial, of any wire in Sebald's possession. (See, e.g., People v. Hughes (2002) 27 Cal.4th 287, 357 [jury could reasonably infer that defendant harbored requisite intent to rob when he entered apartment, based on fact that he did commit a robbery once there].)^[10]

Second, a trial court may properly permit the prosecution some leeway to elicit testimony that paints a picture of the overall significance of the charged crime in a prosecution such as this, where a seemingly trivial intrusion into the electrical closet of a vacant office building may have seemed to some jurors insufficiently consequential to warrant a felony burglary conviction. As the United States Supreme Court has emphasized, the prosecution bears the burden not only of proving that a defendant is technically guilty of a crime, but also of convincing the jurors of the moral propriety of voting to convict. (Old Chief v. United States (1997) 519 U.S. 172, 188 (Old Chief).) Given this two-pronged burden, "the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to convince the jurors that a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendant's legal fault." (Ibid.; cf. People v. Cajina (2005) 127 Cal.App.4th 929, 934 [citing Old Chief in holding that prosecution must be permitted to establish that defendant who failed to register was a "sex offender" despite technical irrelevance of reason defendant was required to register, because of the "risk [the jury] will [otherwise] view the People's case as an oppressive, unnecessary intrusion on the defendant's liberty, resent the People for prosecuting it, and consequently refuse to consider whether the defendant's failure to register was sufficiently morally blameworthy to warrant punishment"].)

Thus, in the instant case, in light of the potential relevance of the objected-to testimony to establish the intent element of burglary and to demonstrate that the burglary was sufficiently serious that a conviction was "morally reasonable," we cannot conclude that the trial court committed an abuse of discretion. (Old Chief, supra, 519 U.S. at p. 188.)

V

Reversal Is Not Warranted Based on the Admission of Testimony Regarding a Possible Motive for Stealing Wires

Sebald next argues that the trial court abused its discretion in permitting the vacant office building's maintenance man to testify that people ("they") stole copper wires to obtain money to purchase drugs. We again set forth the pertinent procedural history prior to analyzing this contention.

During his direct examination testimony, Thomas Healy, who was responsible for maintenance at the vacant building, testified that the electrical closet contained copper wires. The prosecutor then asked: "Q. What, if anything, do you know about the use of the copper in the fuse boxes? What is that used for, if you know?" Defense counsel objected, stating, "Objection, foundation." The objection was overruled. Healy responded, "Well, they use it to buy drugs with." Healy elaborated that he did not know the precise value of the copper wiring ("how much you can get for it") but he "kn[e]w they do it" for that reason because "they tell me."^[11]

Sebald contends that Healy's testimony was inadmissible under Evidence Code section 800 because it was based on "conjecture and speculation."

Evidence Code section 800 states that a lay witness may only testify with respect to an opinion "that is: (a) Rationally based on the perception of the witness; and (b) Helpful to a clear understanding of his testimony." A trial court's ruling that there is sufficient foundation for a lay witness's opinion testimony is reviewed for abuse of discretion, and reversal is not warranted " ' "unless a clear abuse of discretion appears." ' " (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 33; People v. Mixon (1982) 129 Cal.App.3d 118, 127 [same]; People v. Thornton (2007) 41 Cal.4th 391, 429 ["We review for an abuse of discretion a trial court's ruling that a question calls for speculation from a witness"].)

In the instant case, Healy's testimony that the copper from the electrical shed was arguably based on his "perception[s]," as Healy saw that the copper wire was repeatedly stolen from the electrical closet and apparently encountered people who stole copper wire who then told him that they did so to acquire funds to purchase drugs. (See Evid. Code,  170 [stating that " '[p]erceive' means to acquire knowledge through one's senses"].) The testimony was clearly flawed on other grounds, however, in that it appeared to consist solely of the relation of hearsay (out-of-court statements by unknown and identified persons) and was, at least in part, irrelevant.^[12]

We need not further explore the question of whether the trial court erroneously admitted the testimony, however, because even if the trial court abused its discretion in overruling defense counsel's foundation objection, any error was harmless. As noted earlier in our opinion, the evidence against Sebald was overwhelming, and there is no reasonable probability that without the brief testimony of the building maintenance man that some unidentified people told him they steal copper wires to purchase drugs, Sebald would have received a more favorable outcome. (People v. Fudge (1994) 7 Cal.4th 1075, 1103 [evidentiary error under state evidence rules is properly evaluated under "standard of review . . . announced in People v. Watson (1956) 46 Cal.2d 818, 836, and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension"].)^[13]

VI

Reversal Is Not Required Based on Cumulative Errors at Trial

Sebald contends that the cumulative effect of the errors at trial requires reversal of his conviction. (See People v. Holt (1984) 37 Cal.3d 436, 459 [reversing conviction based on "cumulative effect" of trial errors].) We disagree.

Our analysis of Sebald's challenges on appeal reveals one error (a witness's mention of Sebald's parole status to the jury) that was immediately cured by the trial court's striking of the testimony, and two arguable errors: admission of the maintenance man's testimony over a foundation objection that people steal copper wire to buy drugs; and instructional language that could have been misinterpreted to include the fenced parking area as a portion of the office "building." On the other side of the equation, the prosecution's case, if awkwardly presented in some respects, was overwhelming, and none of the errors cited undermined the key evidence against Sebald: (i) an apparently unbiased witness observed Sebald walk up to the electrical closet with wire cutters, and grab and cut wire; and (ii) Sebald was stopped by police, a short distance away, moments after the crime, carrying tools for removing wire, and told police that he was working on the building. As this central evidence was essentially unchallenged at trial (and remains so on appeal), it is not possible to conclude that any of the potential errors at trial, either considered independently or cumulatively, resulted in sufficient prejudice to Sebald to warrant reversal. (Cal. Const., art. VI,  13.)

VII

The Sentence for Possession of Burglary Tools Must Be Stayed Under Section 654

Finally, Sebald challenges his sentence, contending that the trial court improperly sentenced him twice for the same "act," in violation of section 654, when it imposed a sentence for both possession of burglary tools and burglary. We agree.

The test for determining whether a criminal course of conduct constitutes only a single criminal "act" for purposes of section 654 is as follows: " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (People v. Britt (2004) 32 Cal.4th at 944, 951-952 (Britt).) The application of section 654, thus, "turns on the defendant's objective in violating" multiple statutory provisions. (Britt, at p. 952.) Where the commission of one offense is merely " 'a means toward the objective of the commission of the other,' " section 654 prohibits separate punishments for the two offenses. (Britt, at p. 953.)^[14]

The Attorney General does not dispute the applicable legal standard, but contends that the evidence did, in fact, show two separate criminal objectives. The Attorney General argues that Sebald had one criminal intent in burglarizing the electrical closet and evidenced a second criminal intent "to commit future burglaries" through his continued possession of the burglary tools after leaving the scene of the burglary. We believe the Attorney General's contention "parses the objectives too finely." (Britt, supra, 32 Cal.4th at p. 953; People v. Lopez (2004) 119 Cal.App.4th 132, 138 [holding that section 654 precluded separate punishments for unlawful possession of ammunition and unlawful possession of a firearm where evidence showed single intent "to possess a loaded firearm"].)

Sebald was arrested immediately after the burglary a very short distance from the scene of the crime. It would be sheer speculation to conclude from the sole fact that Sebald did not immediately cast away his wire cutters, screwdrivers, hammer, etc. upon committing the burglary, that he intended to commit further crimes. This is particularly the case where, as here, the items consisting of "burglary tools" had legitimate, noncriminal uses that would lead even a person with no intent to commit further burglaries to refrain from discarding them.^[15]

Consequently, we conclude that the evidence shows, at most, a single criminal objective the theft of wiring from the electrical closet and thus two separate punishments are precluded by section 654. By statute, the sentence for Sebald's possession of burglary tools (the less serious crime) must be stayed. ( 654; People v. Dominguez (1995) 38 Cal.App.4th 410, 420 [proper procedure when  654 applies to impose a stay].)

DISPOSITION

The sentence on count 2 for possession of burglary tools is stayed. The superior court is ordered to prepare an amended abstract of judgment showing this modification and send it to the Department of Corrections. As so modified, the judgment is affirmed.

IRION, J.

WE CONCUR:

McINTYRE, Acting P. J.

O'ROURKE, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] As we conclude that the evidence supported a conviction under the legal theory that the electrical closet was an integral part of the larger office building, we need not, and do not, decide whether the electrical closet, standing alone, would constitute a "building" under the burglary statute. (Bolin, supra, 18 Cal.4th at p. 331.)

^[3] The building's owner testified that "[t]he electrical closet was constructed adjacent to the back wall of the building," and is "built right into the side wall and . . . has doors" that "were securing the electrical panel . . . as part of the outside of the building." This testimony was further illustrated by photographs of the structure that were submitted into evidence.

^[4] Sebald also asserts that the electrical cabinet is not protected by the burglary statute because the cabinet cannot be "occupied" by a person, and can be accessed by the electrical company. Even were we to accept Sebald's factual assumptions (that the space could not be occupied and was subject to some type of electrical easement), neither of these facts are dispositive under the burglary statute. The ability of a person to physically occupy the space into which a felonious entry is attempted is not required, at least where the structure is itself part of a larger building that is capable of physical occupation. (See Franco, supra, 79 Cal.App. at p. 683[product display case]; Jackson, supra, 131 Cal.App. at p. 606 [product display case]; Ravenscroft,supra, 198 Cal.App.3d at p. 642 [ATM]; see also Labaer, supra, 88 Cal.App.4th at p. 296 ["A building is ' "a structure which has a capacity to contain, and [is] designed for the habitation of man or animals, or the sheltering of property"  ' " (italics added)].) Similarly, there is no exception to the burglary statute for "a building" that is subject to entry by certain authorized personnel, such as a representative of the electrical company, where, as here, the building is otherwise not accessible to the "general public." (Valencia, supra, 28 Cal.4th at p. 11.)

^[5] Sebald attempts to distinguish Franco and Jackson by contending that in those cases the display cases "were inside the building proper," while in the instant case "the electrical cabinet was not in the building or foyer to the building" but was "attached to the outside of the building." We do not agree that the cases are distinguishable on the stated ground. Factually, as noted above, Sebald is simply incorrect that the jury could not reasonably have found, under Valencia, that the electrical closet was "in the building" to the same degree as the structures at issue in Franco and Jackson. Second, as a legal matter, there is no suggestion in the burglary statute or case law that supports applying a different rule to structures located in the "foyer" of a building as opposed to those along the building's side or back.

^[6] Sebald's reliance on People v. Knight (1988) 204 Cal.App.3d 1420 is unavailing. In Knight, the Second District determined that a "gang box" was not a " 'building' " for purposes of the burglary statute. (Id. at pp. 1422-1424.) The gang box was described by the court as a "large metal tool box" on wheels, which was secured by a chain to a construction trailer. (Id. at p. 1423.) The structure at issue here is unlike the gang box in Knight in a number of ways, including that it is physically built into the larger office building, and not simply temporarily connected to it by a chain.

^[7] Sebald initially contends that the use of this standard language from CALCRIM No. 1700 was erroneous because "it . . . assumed the electrical cabinet was a building or part of a building." As we have concluded in the previous section that the stated assumption was not erroneous, we necessarily reject this contention.

^[8]Valencia states:

"In most instances, of course, the outer boundary of a building for purposes of burglary is self-evident. Thus, in general, the roof, walls, doors, and windows constitute parts of a building's outer boundary, the penetration of which is sufficient for entry.

"In other instances, in which the outer boundary of a building for purposes of burglary is not self-evident, we believe that a reasonable belief test generally may be useful in defining the building's outer boundary. Under such a test, in dealing with items such as a window screen, a building's outer boundary includes any element that encloses an area into which a reasonable person would believe that a member of the general public could not pass without authorization." (Valencia, supra, 28 Cal.4th at p. 11, second italics added.)

^[9] The contention is also arguably forfeited because Sebald failed to object to it below. (See People v. Guiuan (1998) 18 Cal.4th 558, 570 [" 'Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language' "]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1142 ["If defendant believed that a modification to [correct instruction] was required, he was obligated to request it"]; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061 [where "[t]he instruction given was an accurate statement of law" if the defendant believed a modification "was required, he was obligated to request it"].) Nevertheless, we need not, and do not, decide whether the claim is forfeited in light of our conclusion that there was insufficient prejudice to warrant reversal.

^[10] Sebald emphasizes that Garner's testimony was particularly prejudicial because it suggested that Sebald was responsible for the entire $25,000 of damage to the electrical cabinet, when in fact there were a series of ongoing thefts. Sebald, however, did not object on the basis that the testimony was unduly misleading or prejudicial (Evid. Code,  352), but rather that it was irrelevant. (People v. Partida (2005) 37 Cal.4th 428, 435 (Partida) [on appeal, defendant "may not argue that the court should have excluded the evidence for a reason different from his trial objection"].) In addition, there is no reason to believe the jury misconstrued the testimony. Garner did not state that Sebald caused $25,000 worth of damage, but rather testified that after the incident, it cost $25,000 to restore the electrical closet. In fact, as the jury heard testimony that prior to the burglary the doors had been nailed shut, the evidence presented (Jiminez's testimony that Sebald merely pulled the doors open) suggested that there had been a previous intrusion into the electrical closet that could have accounted for some of the damage.

^[11] The relevant part of Healy's testimony was duplicated by Garner, who testified that people collect copper in order to "re-sell it to the salvage yard people." Sebald did not object to Garner's testimony on this point below and does not challenge its admission on appeal.

^[12] Setting aside the hearsay problem, the fact that the copper wiring could be resold for money was relevant to establishing a motive for the burglary and Sebald's intent to commit theft when he entered the electrical closet. That this money was then used by some persons to purchase drugs, however, was not relevant, and potentially prejudicial. Sebald, however, did not object on hearsay, relevance or prejudicial effect (Evid. Code,  352) at trial and does not raise these grounds on appeal. (Partida, supra, 37 Cal.4th at p. 435 [on appeal, defendant "may not argue that the court should have excluded the evidence for a reason different from his trial objection"].)

^[13] Sebald contends that without Healy's testimony, "the jury might have wondered if Sebald opened the doors of the cabinet, not to commit a theft to buy drugs, but instead to see if he could find a place to sleep." Sebald fails to explain, however, how the jury could rationally have reached this conclusion in light of the essentially undisputed testimony that immediately after Sebald opened the doors to the electrical closet, he began to grab and cut the wiring; was carrying a bag and wire-cutting tools at the time of his arrest; and told the arresting officer that he was just doing some work on the building.

^[14] Section 654 itself states that "[a]n act or omission that is punishable in different ways by different provisions of law" shall not be "punished under more than one provision."

^[15] The Attorney General also notes that the probation report states that Sebald "had three prior convictions for second degree burglary" to support the contention that Sebald planned to commit future crimes with the wire cutters. We do not believe, however, that the probation report, which merely notes the existence of Sebald's previous burglary convictions ("459 PC(2nd deg.)(F)"), one in November 2001 and the second and third in January 2003, provides any significant support for the conclusion that Sebald was intending to commit additional crimes with the wire cutters/screwdriver/ hammer at the time he was arrested.