Filed 8/27/18 P. v. Manning CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed.

Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Christopher Maurice Manning of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a); all statutory references are to the Penal Code) and found a nonaccomplice was present in the residence. (§ 667.5, subd. (c)(21).) Manning contends the trial court erred and violated his constitutional rights by failing to instruct the jury on the lesser included offense of disorderly conduct or prowling (§ 647, subd. (h)). Finding no basis to reverse the judgment, we affirm.

I

Factual and Procedural Background

S.M. awoke around 5:30 a.m. on the morning of July 26, 2014, after hearing a noise in the backyard of her Santa Ana home. She walked into her bathroom, looked out the window, and saw Manning who was wearing a black beanie. She checked her other doors and windows, found nothing unusual, and phoned 911. While on the phone with the dispatcher, S.M. walked out to her front door and spotted Manning in her neighbor’s yard. She called out and the man, who had a ski mask pulled over his face, turned toward her before walking away.

Officers apprehended Manning nearby a short time later and recovered a ski mask from his pocket. S.M. identified Manning, her neighbor, as the man she had seen through the bathroom window. She later discovered a torn window screen on a bedroom window next to the bathroom window where she first saw Manning. Investigators found Manning’s fingerprints on the wall next to that window. S.M., a real estate agent, had her home listed for sale, and planned to show it on the day of the incident. The previous day S.M. and a termite inspector did not see the torn screen when they completed a walk-through of the property.

Following trial in October 2016, the jury convicted Manning as noted above. In December 2016, the court sentenced Manning to the low term of two years in prison.

II

Discussion

A. “Prowling” is Not a Lesser Included Offense of Residential Burglary

Manning contends the trial court erred when it denied his request to instruct on “prowling” (§ 647, subd. (h) [disorderly conduct]) as a lesser included offense of residential burglary. The trial court determined the crime was not a lesser included offense of burglary (People v. West (1980) 107 Cal.App.3d 987, 993 [“Prowling is not a lesser included offense of burglary and the court did not err in refusing an instruction with respect thereto”]), and concluded it could not provide an instruction without the prosecution’s consent (People v. Birks (1998) 19 Cal.4th 108, 112-113), which was refused. The court did provide an instruction on attempted burglary as a lesser included offense.

“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]’” (People v. Breverman (1998) 19 Cal.4th 142, 154.) The sua sponte instructional rule “prevents the ‘strategy, ignorance, or mistakes’ of either party from presenting the jury with an ‘unwarranted all-or-nothing choice,’ encourages ‘a verdict . . . no harsher or more lenient than the evidence merits’ [citation], and thus protects the jury’s ‘truth-ascertainment function’ [citation]. ‘These policies reflect concern [not only] for the rights of persons accused of crimes [but also] for the overall administration of justice.’” (Id. at p. 155.) “[I]nstructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.” (Id. at p. 162 [evidence from which a jury composed of reasonable persons could conclude the lesser offense, but not the greater, was committed].)

Trial courts employ “two alternative tests to determine whether a lesser offense is necessarily included in a greater offense. Under the elements test, we look to see if all the legal elements of the lesser crime are included in the definition of the greater crime, such that the greater cannot be committed without committing the lesser. Under the accusatory pleading test, by contrast, we look not to official definitions, but to whether the accusatory pleading describes the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime.” (People v. Moon (2005) 37 Cal.4th 1, 25-26.) We review de novo the failure to instruct on a lesser included offense, viewing the evidence in the light most favorable to defendant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)

Section 459 provides, “Every person who enters any house [etc.] . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.” “Every burglary of an inhabited dwelling house [etc.] is burglary of the first degree. (b) All other kinds of burglary are of the second degree.” (§ 460, [“inhabited” means currently being used for dwelling purposes whether or not occupied (§ 459)].) The burglary statute requires the prosecution to prove “1. The defendant entered [a house etc.]; [AND] 2. When (he/she) entered . . . (he/she) intended to commit (theft/ [or] <insert one or more felonies>).” (CALCRIM No. 1700.)[1]

Section 647 provides that “every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: . . . (h) Who loiters, prowls, or wanders upon the private property of another, at any time, without visible or lawful business with the owner or occupant. As used in this subdivision, ‘loiter’ means to delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered.” Loitering requires the prosecution to prove “1. The defendant delayed, lingered, prowled, or wandered on the private property of someone else; 2. When the defendant was on that property, (he/she) did not have a lawful purpose for being there; 3. When the defendant was on the property, (he/she) intended to commit a crime if the opportunity arose; AND 4. The defendant’s purpose for being on the property was to commit a crime if the opportunity arose.” (CALCRIM No. 2915.)

Disorderly conduct is not a lesser included offense of burglary under the statutory elements test. A person can commit residential burglary even if he has a lawful purpose for being on private property. (E.g., People v. Garcia (2016) 62 Cal.4th 1116, 1127-1128 [person may be guilty of burglarizing a room within a structure in which he otherwise was lawfully present].) Manning apparently concedes the offense is not a lesser included offense under the statutory elements test.

Manning invokes the accusatory pleading test to assert an instruction on prowling was required: “[O]n the facts alleged in this case, the lesser offense of prowling is necessarily included in the burglary. In other words, the greater offense of burglary could not [be] committed without also committing the lesser offense of prowling, based on the facts alleged.”

“Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1228.)

The information charged Manning in the language of the burglary statute. The operative information charged Manning in count 1 with a “violation of Sections 459-460(a) of the Penal Code” by “unlawfully enter[ing] an inhabited dwelling house, trailer coach, and inhabited portion of a building, inhabited by [S.M.], with the intent to commit larceny.” It did not allege the specific “unusual” facts cited by Manning in his brief. Accordingly, the prosecution did not allege burglary in a way that subsumed a lesser included offense. The duty to instruct on lesser included offenses does not require an examination of “the factual circumstances” or the evidence adduced at trial. (People v. Smith (2013) 57 Cal.4th 232, 244.)[2] Because disorderly conduct by prowling was not a lesser included offense of burglary, Manning’s argument fails.

B. The Trial Court Did Not Err in Failing to Instruct on Lesser Related Offenses

Manning also asserts the court’s failure to instruct on the lesser related offenses of prowling and trespassing deprived him of his constitutional rights to present a defense and to trial by jury. (See Mathews v. United States (1988) 485 U.S. 58, 63 [“As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor”]; People v. Jennings (2010) 50 Cal.4th 616, 668 [California law does not permit a court to instruct on an uncharged lesser related crime unless agreed to by both parties].)

Manning cites no authority to support his argument that failure to instruct on a lesser related offense deprives a defendant of a defense to a charged offense. As noted in People v. Valentine (2006) 143 Cal.App.4th 1383, 1387 (Valentine), “[i]t has never been the law that an accused is entitled to instructions on offenses for which he is not charged in order to urge the jury that he could have been convicted of something other than what is alleged.” A lesser related offense is not a defense to a crime, it is a theory of criminal liability based on a different offense. (Id. at p. 1388.) Notably, the United States Supreme Court has declined to find the federal Constitution requires instruction on lesser offenses in noncapital cases. (Hopkins v. Reeves (1998) 524 U.S. 88, 90-91 [federal constitution does not require trial courts to instruct juries on lesser offenses]; Schad v. Arizona (1991) 501 U.S. 624, 646-647; cf. Beck v. Alabama (1980) 447 U.S. 625, 634 [lesser included offense instructions required in capital cases to ensure jury will accord the defendant the full benefit of the reasonable-doubt standard]; accord Breverman, supra, 19 Cal.4th at p. 165 [failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, state law error and subject only to the state standards of reversible error]).

The failure to instruct on lesser related offenses did not deprive Manning of his federal constitutional rights. Nothing prevented the jury in this case from considering any “defense” to the burglary charge, including whether he “had not torn the screen,” and thus was not attempting to enter the house, but merely lurking around S.M.’s window. Because the trial court did not err, we need not address Manning’s claim concerning the appropriate standard of prejudice.

III

Disposition

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.