P. v. Smith

Filed 10/13/06 P. v. Smith CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Shasta)

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In case No. 04F8511, a jury convicted defendant James Smith of first degree burglary, receiving stolen property, and felony petty theft. The trial court found defendant had served a prior prison term for burglary, and sentenced him to an aggregate unstayed prison term of seven years. In case No. 04F9268, defendant entered a negotiated plea of guilty to receiving stolen property. In accordance with the plea agreement, other charges and another pending action (case No. 04F8426) were dismissed, and defendant was sentenced to a prison term of two years to run concurrently with the sentence imposed in case No. 04F8511.

On appeal, defendant raises four claims of error regarding case No. 04F8511. The People concede, and we agree, that one of defendant’s contentions has merit--his receiving stolen property conviction must be reversed because he “cannot be convicted of both stealing and receiving the same property . . . .” We otherwise shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Richard Barreau owned and operated The Snack Shack, a fast food restaurant on Eastside Road in Redding. He and his family lived in a fifth-wheel trailer located behind the Snack Shack.

On October 3, 2004, Barreau and his family went to an art show in Red Bluff. When they returned home that afternoon and pulled into the driveway, Barreau saw defendant open the door of the trailer and run out. Barreau jumped out of his car and chased defendant, but finally lost sight of him in a trailer park.

Through the open window of a truck that was parked on a nearby street where “usually nobody ever parks,” Barreau and investigating officer John Schoelkopf observed that Barreau’s petty cash box and a cloth bag containing his wife’s insulin were on the passenger seat of the truck. Schoelkopf searched the truck and found defendant’s temporary DMV identification card, a rental agreement for a storage unit rented in defendant’s name, and a used car contract identifying defendant as the owner of the truck.

Officer Schoelkopf called the telephone number listed on the rental agreement and asked to speak to defendant. However, the man who answered the phone said that Schoelkopf had the wrong number.

Late that evening, defendant called the police department and reported his truck had been stolen. According to defendant, the truck had broken down while it was being driven by his girlfriend. She then left the keys under the floor mat so defendant could pick the truck up later. When he went to get the truck, it was gone.

On October 5, 2004, defendant’s girlfriend, Erica Jamison, came into the police station to retrieve defendant’s truck, which had been impounded. Officer Schoelkopf told her to have defendant “get in touch with [him] to make a statement regarding the case and to pick up his vehicle.”

On or about October 6, 2004, defendant showed up at The Snack Shack, said he was returning property that a person who was living with defendant had taken from the Barreaus’ trailer, and handed Barreau a manila envelope containing a $100 bill and property taken from the trailer, including deeds to the property.

On October 11, 2004, defendant came to the police station. Using a “ruse” in an effort to get defendant “to admit to the crime,” Officer Schoelkopf falsely told defendant that his fingerprints were found on the cash box recovered from his truck and that after being shown a “photo line-up,” the victims of the burglary had “positively identified him as the suspect fleeing their home.” Defendant then stated he was working at the time of the burglary and someone else was responsible for it. Schoelkopf testified that, according to defendant, “he had been contacted by this friend named Alex, that Alex had admitted to burglarizing the trailer at The Snack Shack, and that he didn’t know how to contact Alex, didn’t know Alex’s last name. But given the fact that he had loaned this truck to Alex, or had Alex pick the truck up for him, he had gone to make things right with the victim and had paid the victim some cash money, had brought back a wallet and some deed paperwork for the property.” Defendant explained that Alex was using the truck because, in Schoelkopf’s words, defendant “had instructed Alex to pick the vehicle up, that the vehicle had broken down on the roadside when it was under the control of his girlfriend, and that Alex was doing him a favor of picking the truck up.” Defendant reiterated that Alex admitted he burglarized the trailer.

At trial, defendant testified as follows: After his girlfriend called to say there was something wrong with his truck, defendant asked his friend, Alex Gay, to “go pick up the truck and take it straight home.” Because he “was kind of worried about [his] truck in the first place, leaving it with someone else,” defendant went home and met up with Alex. Alex showed defendant some deeds and a wallet, stated he had stolen them from a trailer, and said defendant’s truck “might have been seen.” Defendant then “attempted to go back to the guy’s house and return the stuff.” The front door of the trailer was unlocked, so defendant went inside. Just then a van pulled up. Defendant “[g]ot scared and turned around and ran” because “it’s not something you’re supposed to be doing, going into somebody’s house.” Although he had intended to return all of the property taken from the trailer, he was “so nervous that [he] didn’t grab the cash box. And when [he] went [back to the trailer] to put the stuff back in, the cash box was still in the truck.” Defendant admitted he lied when he told police his truck had been stolen. He lied because he “had an idea” the police were conducting a burglary investigation. He also admitted he lied when he told the officer that he did not know Alex’s last name. He explained that he did not want to be called “a rat” and that “bad things can happen to you” if you tell on someone else.

DISCUSSION

I

Defendant claims the trial court erred when it rejected defense counsel’s request for a jury instruction on trespass. We disagree.

Defendant was charged in case No. 04F8511 with committing first degree burglary, receiving stolen property, and petty theft after having been convicted of a theft-related offense. At the close of the People’s case-in-chief, defense counsel asked the court to instruct the jury with CALJIC No. 16.350, the definition of trespass, “as a lesser related offense to Count 1, burglary.”

CALJIC No. 16.350 states in pertinent part: “Every person who enters or remains in any noncommercial dwelling house, apartment, or other residential place without the consent of the [owner or [his] [her] agent] [person in lawful possession thereof] is guilty of a violation of Penal Code § 602.5, subdivision (a), a misdemeanor. In order to prove this crime, each of the following elements must be proved: 1. A person willfully entered or remained in a noncommercial [dwelling house] [apartment] [or] [other residential place] belonging to another; and 2. That person entered or remained without the consent of the (owner, etc.).”

Defense counsel explained that evidence would show trespass was “the only crime that was in fact committed . . . . From the facts of the case, [trespass] is a lesser related and a lesser included” offense to the crime of burglary. The court denied the request.

On appeal, defendant properly concedes that trespass is not a lesser included offense of burglary (People v. Irizarry (1995) 37 Cal.App.4th 967, 973-974), and that he was not entitled to an instruction on trespass even if it were a lesser related offense to burglary (People v. Birks (1998) 19 Cal.4th 108, 123-124).

Nevertheless, defendant contends that he was entitled to the instruction in order to pinpoint his theory of the defense--his entry into the trailer was nothing more than a trespass because he had no intent to steal or commit a felony. The contention fails.

Pinpoint instructions “relate particular facts to a legal issue” or “‘pinpoint’ the crux of a defendant’s case, such as mistaken identification or alibi” (People v. Saille (1991) 54 Cal.3d 1103, 1119), thus “direct[ing] attention to evidence from a consideration of which a reasonable doubt of his guilt could be engendered.” (People v. Sears (1970) 2 Cal.3d 180, 190.) To obtain such an instruction, the defense must ask for it, and it must be supported by substantial evidence. (People v. Moore (2002) 96 Cal.App.4th 1105, 1115-1116.)

Here, the only reason tendered for the requested instruction was the legally incorrect theory that defendant was entitled to it as a lesser included or lesser related crime. His attempt to now characterize it as a request for a pinpoint instruction clarifying the defense theory of lack of intent to steal is unpersuasive. Indeed, the requested instruction was not a pinpoint instruction relating particular facts to a legal issue; it was the definition of a crime. (People v. Saille, supra, 54 Cal.3d at p. 1119.) Because the defense did not ask the trial court to give a pinpoint instruction on trespass, the court was not required to do so. (People v. Moore, supra, 96 Cal.App.4th at p. 1115.)

In any event, the refusal to instruct with CALJIC No. 16.350 did not result in a miscarriage of justice. (See People v. Barnett (1976) 54 Cal.App.3d 1046, 1052.) The instructions given to the jurors adequately informed them of the legal principles at issue in this case. Contrary to defendant’s claim, the absence of the requested instruction did not create an “all-or-nothing” scenario where the jury would have no alternative but to find defendant guilty of burglary if it found that he entered the trailer without the Barreaus’ consent. The lack of consent was but one element necessary to prove burglary, and defendant conceded that element at the outset of trial. The intent to steal or to commit a felony also was a prerequisite to finding defendant guilty of burglary. No clarification was necessary because the jury was instructed at length that it could not find the defendant guilty of burglary unless it found he intended to steal the items when he entered the trailer. Besides, defendant’s story was so implausible, and his credibility was so effectively impeached in other ways, it is inconceivable by any standard that the requested instruction would have resulted in an outcome more favorable to him.

II

Next, defendant contends the trial court erred in instructing the jury with CALJIC No. 2.03 as follows: “If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”

In defendant’s view, “there were no pretrial statements made by [defendant] . . . at any time, and to any trial witness, that were shown to be inconsistent” and, thus, there was no factual basis for the instruction. This is so, he suggests, because his “statements, pretrial and at trial, remained consistent” and one of his lies, that he did not know Alex’s last name, was “not material or relevant to any issue in the present case.” Again, we disagree.

Defendant made three false statements to police prior to trial: (1) he lied when he said he had gone to retrieve the truck and found that someone had taken it, (2) he lied when he reported his truck had been stolen, and (3) he lied when he said he did not know the last name of Alex, the person who defendant claimed had committed the burglary. All were relevant because they were uttered in an effort to absolve himself of any responsibility for the burglary. As the People correctly state: “These three false statements . . . provide substantial evidence warranting the giving of CALJIC No. 2.03 to the jury. [(People v. Edwards (1992) 8 Cal.App.4th 1092, 1102 [pretrial false statements by a defendant support an inference of consciousness of guilt].)] [Defendant’s] acknowledgement during trial that his pretrial statements were lies does not negate the fact that the statements were willfully false and deliberately misleading when made. Thus, the trial court properly instructed the jury with CALJIC No. 2.03.”

Defendant suggests that CALJIC No. 2.03 should not have been given because the prosecutor did not cite all three false statements when asking for the instruction. The People correctly respond the prosecutor did cite as bases for the instruction the false stories defendant told to Barreau and to Officer Schoelkopf. In any event, since the trial court found the evidence justified the instruction, and the record supports that finding, it is immaterial whether the prosecutor cited the supporting evidence.

Defendant cites People v. Hannon (1977) 19 Cal.3d 588 (hereafter Hannon) for the proposition that, in the words of his counsel, the trial court must “determine if there is legally sufficient evidence in the record to support the finding or inference an instruction permits, and the failure to make such a preliminary finding is error.” He seems to complain that, here, the trial court did not specifically refer to the three false statements when it overruled his objection to CALJIC No. 2.03 (the court simply noted there was “an evidentiary basis” for the instruction). However, Hannon requires only that before giving an instruction, the court must make a preliminary determination that there is evidence to support the instruction. (Id. at pp. 597-598.) Nothing in that decision requires the trial court to articulate with specificity the evidence it finds sufficient to support the instruction.

For all the reasons stated above, defendant’s claim of error has no merit.

III

Defendant argues that imposition of the upper term for burglary violated the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely).

Apprendi held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; thus, when a court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 302-305 [159 L.Ed.2d at pp. 413-414].)

Defendant recognizes his claim of error fails as a result of the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (hereafter Black). Thus, he raises the contention solely “to preserve it for federal court review.”

Black held that while the middle term is the presumptive sentence under our determinate sentencing scheme, the upper term is the “statutory maximum“ for purposes of the rule of Apprendi and Blakely. (Black, supra, 35 Cal.4th at p. 1257.) Hence, “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.)

We must apply the holding in Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In any event, defendant’s contention fails because in imposing the upper term, the trial court relied on the facts that defendant’s “convictions for theft are numerous and they are of increasing seriousness.” The rule of Apprendi and Blakely does not apply to use of prior convictions to increase the penalty for a crime. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455]; People v. Cruz (1995) 38 Cal.App.4th 427, 433 [one valid factor in aggravation is sufficient to expose defendant to the upper term].)

IV

Defendant contends that his conviction for receiving stolen property must be reversed because he “cannot be convicted of both stealing and receiving the same property . . . .” The People agree, and so do we. (People v. Jaramillo (1976) 16 Cal.3d 752, 757.)

DISPOSITION

Defendant’s conviction for receiving stolen property in case No. 04F8511 is reversed. In all other respects, the judgment is affirmed.

SCOTLAND , P.J.

We concur:

RAYE , J.

ROBIE , J.

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