P. v. Willis
Filed 8/6/13 P. v. Willis CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff
and Respondent,
v.
LEROY WILLIS et al.
Defendants
and Appellants.
B240388
(Los
Angeles County
Super. Ct.
No. TA120996)
APPEAL
from a judgment of the Superior Court
of
County. Laura R.
Walton, Judge. Affirmed as modified.
Renee Rich, under
appointment by the Court of Appeal, for Defendant and Appellant Jerry Lamar
Thompson.
Sharon
Fleming, under appointment by the Court of Appeal, for Defendant and Appellant
Leroy Willis.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Leroy Willis and Jerry Lamar
Thompson appeal from the judgments entered after a jury convicted them of
allegation that the crime was a violent felony because someone else was in the
house at the time. We reject their
contentions: that the trial court erred
by not instructing the jury on the elements required to prove the violent
felony allegation and that there was insufficient evidence to sustain that
finding; and that the prosecutor
committed misconduct when arguing to
the jury. After modifying the judgment
to correct certain sentencing errors, we affirm.
FACTS AND PROCEDURAL HISTORY
Fifteen-year-old
Kimberly Duran was asleep in the upstairs bedroom of her family’s Lynwood
home on the morning of August 19, 2011,
when she was awakened by her barking dogs, looked out her window, and saw Jerry
Lamar Thompson in the backyard, holding a bucket that belonged to the Duran
family. Duran saw Thompson head toward
the back door to the house, and then heard a loud banging sound. Duran then noticed Leroy Willis standing next
to the door. She ran downstairs and out
the front door, then went to a neighbor’s house to phone 911. As Duran headed downstairs, the back door was
closed. She continued to hear banging at
the rear door of her house as she fled, but did not know whether that door ever
opened before she exited.
A
sheriff’s deputy who responded to the 911 call saw that the back door of the
Duran house was wide open. The door
handles were broken and the dead bolt had pry marks on it, which indicated that
a burglary tool had been used to force the door open.
Willis
and Thompson were arrested nearby a short time later.
first degree residential burglary, along with allegations that the crime was a
violent felony because someone other than them was present in the house during
the commission of the burglary. (Pen.
Code, § 667.5, subd. (c)(21).)
name="_ftnref2" title="">[2]
In
addition to the testimony of Duran and the deputy sheriff, there was evidence
that Thompson had a prior conviction for first degree burglary and that Willis
had a prior conviction for attempted first degree burglary. Willis testified that Thompson was his
brother-in-law. According to Willis, as
they were walking they saw four Hispanic males pointing at and heading toward
them. Willis, who took prescription
medication for panic attacks, believed the four men were gang members. Fearing the men intended to harm him, Willis,
accompanied by Thompson, ran away, ending up in the back yard of the Duran
house. While standing at the back door,
Willis flashbacked to an incident where he had been wounded and his brother had
been killed when shot at by gang members.
Acting out of fear and anger, Willis said he hurled himself against the
back door, causing it to burst open. He
ran because he did not want to be accused of having tried to break into the
house.
DISCUSSION
1.
Prosecutorial
Misconduct Claims
It is misconduct for a prosecutor to
misstate the law during argument. (
865, 870.) State and federal law differ
on this issue. Under the federal
constitution, misconduct occurs only if the improper comments so infected the
trial with unfairness that a due process violation occurred. Under the California Constitution, it is
misconduct to use deceptive or reprehensible methods to persuade the jury, but
we will affirm unless it is reasonably probable that the result would have been
more favorable to the defendant absent the misconduct. (Ibid.)
Appellants
contend that the prosecutor committed two instances of misconduct during jury
argument: First, by stating that the mere
act of causing the door to open inward into the house was a sufficient entry to
find a completed burglary had occurred;
and second by telling the jury that he disagreed with defense counsel’s
correct statement about the jury’s treatment of
A.
Argument Concerning Entry
A
burglary occurs when a person enters a building with intent to commit larceny
or any felony. (§ 459.) Any entry, partial or complete, is enough. (People
v. Garcia (2004) 121 Cal.App.4th 271, 280 (Garcia).) An entry occurs if
any part of the intruder’s body, or a tool or instrument he wields, is inserted
inside the premises. This includes
penetrating the area behind a window screen, as well as by inserting a tool
into a doorjamb in order to pry open a door.
(Id. at pp. 280-281.)
During
his rebuttal argument, the prosecutor argued that appellants went beyond an
attempted burglary because they took an “effective step [by] breaking down of
the door . . . .†The trial court
overruled Thompson’s objection that the prosecutor had misstated the law
concerning entry. The prosecutor then
told the jury that “once the door broke, once the door was busted open, then
that constitutes entry.â€
Appellants
rely primarily on Magness v. Superior
Court (2012) 54 Cal.4th 270 (Magness)
for the proposition that merely causing a door to open inward into a house is
not an entry for purposes of completing a burglary, making the prosecutor’s
statement misleading. At issue in
evidence to charge a defendant with burglary where he used a remote control to
open a garage door but did nothing else.
The Magness court affirmed the
Court of Appeal, which held there was insufficient evidence to do so because
the mere act of causing the garage door to go up, without more, did not amount
to an entry. (Id. at p. 279.) In
doing so, the Magness court discussed
People v. Calderon (2007)
158 Cal.App.4th 137 (Calderon),
where the defendant kicked in the victim’s door, but, before he could go
inside, the victim ran out the door with a knife in his hand. The trial court instructed the jury that an
entry occurs when some part of the intruder’s body, or an instrument under his
control, penetrates the area inside the building’s outer boundary. The Calderon
court affirmed the judgment, stating that kicking in the door of a home
constituted an entry.
The
Magness court held that
because the instruction given was correct and there was sufficient evidence to
support a finding that an accomplice’s foot had entered the residence due to
his momentum. (Magness, supra, 54 Cal.4th at p. 276.) However, the Calderon court erred by reasoning that the door itself was an instrument
under the defendant’s control that penetrated the outer boundary of the
building. (Ibid.) Instead, the door was
part of the house’s outer boundary, and was not something outside the house
that was inserted inside the house. (
At
first blush, it appears the prosecutor in this case misstated the law through a
blanket assertion that merely breaking in the door was enough of an entry to
constitute a burglary. However,
appellants must show a reasonable likelihood that the jury understood or
applied this remark in a manner contrary to the law. In conducting this inquiry, we do not lightly
infer that the jury drew the most damaging, as opposed to the least damaging,
meaning from the prosecutor’s statement.
(People v. Spector (2011) 194 Cal.App.4th
1335, 1403.)
The
disputed remarks at issue here occurred during the prosecutor’s rebuttal
argument. During his initial argument,
however, the prosecutor told the jury that the legal meaning of the word
‘enter’ requires proof that “some part of the body penetrates the area inside
the outer boundary of the house.†The
prosecutor told the jury to focus on the instructions concerning “outer
boundary,†and referred to the removal of a window screen as an example of a
completed entry. He then argued that
appellants went beyond the outer boundary of the Duran house, pointing to “the
door frame that’s cracked open with the dead bolt still in place; while you
see, once again, another photo of the broken frame. That’s the inner boundary of the door. [¶] And
you see the lock here too, the lock off the hinges. This is all the inner boundary. Pry marks here, when the officer testified,
that means entry . . . . [¶] [¶]
And to use another example, say if there was -- a door screen. If the defendant removed the door screen,
that is a burglary because they penetrated the outer boundaries of the
residence . . . .â€
When
the disputed remarks made during closing argument are both viewed in context
with this more detailed explanation from the prosecutor’s initial argument and
then combined with the correct instructions the jury received on this issue, we
believe that any reasonable jury would interpret the disputed remarks in light
of the initial correct ones. Combined
with the strong evidence against appellants – broken handles, pry marks, and a
damaged door frame – we conclude there is no reasonable likelihood the jury
misunderstood or misapplied the disputed comments and that a result more
favorable to appellants was not reasonably probable. We apply the same analysis to conclude there
was no federal due process violation.
B.
Comments Concerning Circumstantial Evidence
Thompson
argued to the jury that when evaluating circumstantial evidence, it had to draw
every inference that favored the defense unless the inference was
unreasonable. During his rebuttal
argument, the prosecutor said he would not “argue what [defense counsel] meant
or what it is about circumstantial evidence and whether or not you have to put
it in the light most favorable to the defense.
I disagree with that. I do
disagree with that and all that I’m going to ask you to do . . . .†At that point, Thompson objected that the
prosecutor had misstated the law. The
trial court overruled the objection and said the jurors had been read, and
would also receive, a copy of the instructions on that issue. Appellants contend the prosecutor’s statement
that he disagreed about the drawing of favorable inferences was another
misstatement of the law that amounted to misconduct.
In
a case involving circumstantial evidence, the trial court must instruct that
the jury is to draw from such evidence all reasonable inferences that favor the
defendant. (People v. Merkouris (1956) 46 Cal.2d 540, 560-562.) The jury in this case was so instructed with
CALCRIM Nos. 224 and 225. After Thompson
objected to the prosecutor’s remark, the prosecutor backed off from his
statement and told the jury to look at the two correct CALCRIM instructions
when determining how to evaluate circumstantial evidence.
We
conclude that the prosecutor’s remarks were at most ambiguous. On the one hand, the district attorney said
he would not argue with defense counsel’s characterization of the law of circumstantial evidence. Yet, in the very next sentence the prosecutor
said, “I disagree with it.†Perhaps the
ambiguity is the product of the use of the word “it.†When faced with the defense objection, the
trial court had the opportunity to specifically clarify the point but chose
instead to overrule the objection and only re-refer the jury generally to the
instructions which the jury would be receiving.
Given the ambiguity of the remarks themselves and the trial court’s
statement to the jury, we conclude it is most unlikely that the jury misapplied
the law. We therefore hold that even if
misconduct occurred, it was harmless because without it a result more favorable
to defendants was not reasonably probable.
We apply the same analysis to conclude there was no federal due process
violation.
2.
Failure to
Instruct the Jury on the Elements of the Violent Felony Allegation Was Harmless
Section
667.5 describes numerous offenses that qualify as violent felonies, including
any first degree burglary “wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during the
commission of the burglary.â€
(§ 667.5, subd. (c)(21).) A
defendant found to have committed a violent felony under section 667.5 accrues
fewer presentence conduct credits than are otherwise allowable – no more than
15 percent of his actual period of confinement.
(§ 2933.1, subd. (c); Garcia,
supra,121 Cal.App.4th at p. 274.)
If a defendant convicted of a violent felony served a prison term for a
prior violent felony conviction that occurred less than 10 years earlier, his
sentence must also be enhanced by a three-year term for each such prior
conviction. (§ 667.5, subd. (a).)
The
trial court in this case submitted the truth of the violent felony allegation
issue to the jury. However, the trial
court denied Thompson’s request for an instruction on the elements of that
allegation. The trial court explained
its decision by stating that it had researched the issue and found no such
instruction because none was necessary.
“[T]hat’s usually because either a house is burglarized with no one
absolutely there, or a house is burglarized with an individual present. . .
. It’s either one or the
other, . . .†Appellants
contend the trial court erred by not instructing the jury on the elements of
the violent felony allegation.
name="_ftnref4" title="">[4]
Appellants
cite Garcia, supra,
121 Cal.App.4th at pages 277-280 for the proposition that the issue
of whether a currently charged offense qualifies as a violent felony is for the
trial court to decide. However, because
the issue was submitted to the jury, they contend the trial court should have
crafted an instruction concerning the elements of the violent felony burglary
allegation. This error was compounded,
they contend, because the verdict form simply asked the jury to find true or
false “that during the commission of the burglary . . . a person was present,â€
without clarifying that the person had to be someone other than them.
Respondent
does not dispute appellants’ contention that under Garcia the issue is one for the trial court, not for the jury. Instead, respondent cites decisions which
hold that there is no constitutional
right to a jury finding on sentence enhancement factors, points to the
absence of authority requiring jury instructions on such issues, and contends
that other instructions provided sufficient guidance to the jury. These contentions do not answer appellants’
claim that once the trial court submitted the sentence enhancement issue to the
jury, proper instructions on the elements of that enhancement were required.
More importantly,
the parties have overlooked the holding in People
v. Sengpadychith (2001) 26 Cal.4th 316, 326, where the court said that
juries must decide sentence enhancement issues that increase the penalty for a
crime beyond the prescribed statutory maximum punishment. As noted above, a true finding on a violent
felony allegation can have two possible effects on a sentence. First, it can reduce the amount of custody
credits that may be earned.
name="_ftnref5" title="">[5] Second, it can tack an extra three years onto
a burglary sentence if the defendant had a previous violent felony
conviction. Because the enhancement can
increase the punishment otherwise meted out for burglary, it appears that under
Sengpadychith, supra, at page 326,
the issue was in fact one for the jury to decide.
We need not
resolve that issue, however, because respondent treats the issue as one that
was properly before the jury. Nor need
we decide whether instructions were required because even if we assume that the
trial court erred by failing to instruct the jury on the elements of the
violent felony allegation, its error was harmless.
We review the
trial court’s failure to instruct on the elements of an offense under the
federal constitutional standard: We
review the entire record to determine whether it is clear beyond a reasonable
doubt that a rational jury would have made the necessary findings that someone
other than appellants was present in the Duran house during the commission of
the burglary. (People v. Concha (2010) 182 Cal.App.4th 1072, 1089.) This review typically includes the strength
of the prosecution’s case, and the inquiry’s primary focus is on the weight of
the evidence. Generally, the error is
harmless if the omitted element was uncontested and supported by overwhelming
evidence. (People v. Aranda (2012) 55 Cal.4th 342, 367-368.)
There is no
dispute as to who that “person present†was in this case: it was Duran.
According to appellants, the error cannot be deemed harmless because
there was sufficient evidence that she had left the house before the back door
opened and a completed burglary occurred.
Although the issue we must resolve is whether the
shows that Duran was present during the commission of the burglary, underlying
this is an issue of statutory interpretation.
evidence rules to the evidentiary questions.
(People v. Frausto (2009)
180 Cal.App.4th 890, 897 (Frausto).) As to the statutory interpretation issue, we
exercise independent review and apply the usual rules of statutory
construction. We first examine the
statutory language to determine the Legislature’s intent. If the language is clear and unambiguous, no
construction is needed. If some
ambiguity exists, the literal meaning of a statute must be consistent with the
statute’s purpose. Isolated words and
sentences may not be used to construe statutory language, and the statute must
be construed in context. (
Identical terms in analogous statutes should be construed the same
way. (Id. at pp. 899-900.)
The true nature of
appellants’ argument is found in their separate companion contention that there
was insufficient evidence to sustain
the jury’s true finding on the burglary violent felony allegation: that Duran had fled the house before the door
opened and an entry occurred, meaning she was not present during the commission
of the burglary.
Appellants rely on
People v. Singleton (2007)
155 Cal.App.4th 1332 (Singleton),
which reversed a burglary violent felony enhancement because the undisputed
evidence showed that the victim was at all times in a hallway of his apartment
building, not in his apartment, when the break-in occurred. The Legislature’s use of the phrase “present
in†as opposed to “near†the residence meant that “the nonaccomplice cannot
merely be near, at, or around the residence, but must be in the residence for the purposes of the statute.†(Id.
at p. 1338, original italics.)
Their reliance on
decision was expressly limited to the interpretation of what it means to be
“present in the residence†under section 667.5, subdivision (c)(21). (Singleton,
supra, 155 Cal.App.4th at p. 1336.) The issue in this case is not whether Duran
was present in the residence. She
was. The issue is whether she was present
“during the commission†of the burglary.
That phrase and other substantially similar ones appear in several Penal
Code provisions and has been given an expansive reading.
The phrase “during
the commission of†has the same meaning as “in the commission of.†(People
v. Jones (2001) 25 Cal.4th 98, 108, fn. 6 (Jones) [interpreting section 12022.3, subd. (a), which provides for
sentence enhancement for using a firearm during the commission of certain
enumerated sex offenses]; People v.
Contreras (1997) 55 Cal.App.4th 760, 764 [no semantic difference
between the two phrases].)
The
deadly weapon within the meaning of section 12022.3 occurs in the commission of
a sex offense “if it occurred before,
during, or after the technical completion of the felonious sex act.†(Jones,
supra, 25 Cal.4th at p. 110, original italics.) The Jones
court based its holding on felony-murder rule principles, where a murder is
deemed to have been committed in the perpetration of a felony even if it
occurred after the felony while trying to escape or conceal the crime. (Id.
at p. 109.)
We applied this
rationale in Frausto, supra,
180 Cal.App.4th 890, where we construed section 12022.53, subdivision (d),
which provides for a sentence enhancement for discharging a firearm causing
death “in the commission of†a felony.
The defendant shot and killed one man and shot and wounded two
others. He was convicted of one count of
murder and two counts of attempted murder, and the jury found true section
12022.53 enhancement allegations as to each of the three shootings. On appeal, the defendant contended the
enhancement could apply to only the murder victim because the evidence showed
three separate shootings but the verdict form showed the jury based its
findings for all three enhancements on the shooting of the murder victim. Because the murder victim was the second one
shot, that firearm use could not have occurred during the commission of the
first and third shootings, he contended.
Comparing the
phrase “during the commission of†with similar language in other Penal Code
provisions, we noted that our courts have always given them an expansive
interpretation. (Frausto, supra, 180 Cal.App.4th at pp. 900-902.) After examining those decisions, we gave the
phrase “in the commission of†in section 12022.53 an equally expansive
reading. So long as the underlying
felony and the discharge of the firearm were part of one continuous
transaction, it does not matter whether that discharge occurred before, during,
or after the felonious act. (
The same rationale
applies here. The apparent purpose of
the burglary violent felony enhancement is to impose additional sanctions
against those who burgle a home when someone is actually at home. It would produce an absurd result to construe
that provision to apply where the victim perceives that a break-in is
occurring, but flees in the seconds or split-second before a technical entry
has occurred. (Accord
1 Cal.App.4th 471, 476 [interpreting section 12022.4, which provides
sentence enhancement to those who furnish a firearm during the commission of a
felony in order to enable an accomplice to carry out the crime; rejecting as
absurd literal interpretation urged by defendant that the statute did not apply
because he furnished weapon before the robbery was complete].)
The evidence is
undisputed that Duran was in the house at the moment appellants commenced their
break-in and for some period of time while their efforts to enter were still
underway. Even though she might have
left the house before the actual entry occurred and the burglary was technically
complete, she was still present in the house during the commission of the burglary. As a result, the failure to instruct the jury
on the detailed elements of the burglary violent felony enhancement was
harmless beyond a reasonable doubt because faced with this evidence, any
rational jury would have found the allegation was true.
3.
Substantial
Evidence Supports the Finding on the
Burglary Violent Felony Enhancement
As noted above,
appellants contend there was insufficient evidence to support the jury’s finding
that Duran was present in the house during the commission of the burglary. As just discussed, however, the evidence was
undisputed that Duran was inside the house during the commission of the crime.
4.
Correction
of Sentencing Errors
Appellants raise
two claims of sentencing error: (1) they were awarded 231 days of pre-sentence
custody credit, an amount that must be increased by one day because the trial
court’s calculation omitted the day they were sentenced; and (2) the abstract of judgment must be amended to
delete the imposition of a $20 DNA testing penalty assessment because that fine
was not orally announced at the sentencing
hearing. Respondent concedes these
points and asks that we correct the judgment.
We will do so.
DISPOSITION
The superior court
is directed to prepare an amended abstract of judgment for each appellant
stating that the award of pre-sentence custody credits is 232 days, and
deleting the $20 DNA testing penalty assessment. A copy of the amended abstract is to be sent
to the Department of Corrections. The modified judgment is affirmed in all
other respects.
RUBIN,
ACTING P. J.
WE CONCUR:
FLIER,
J.
GRIMES,
J.
name="_ftn1" title="">[1] Because
there is no dispute concerning Thompson’s and Willis’s identity as the two men
Duran saw at her back door that morning, we do not set forth the facts
concerning the manner of their identification and arrest.
name="_ftn2" title="">[2] All
further section references are to the California Penal Code.
