Opinion
A147911
03-23-2017
THE PEOPLE, Plaintiff and Respondent, v. ZACHORY BEECHE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-151273-0)
INTRODUCTION
After being convicted of first degree burglary, a violation of Penal Code sections 459 and 460, subdivision (a), appellant challenges his conviction. His lone issue is the failure of the trial court to instruct on the offense of trespass. We have reviewed the case and conclude there is no error here, and if any took place, it was harmless. We therefore affirm the conviction.
Unless otherwise stated, all statutory references are to the Penal Code. --------
STATEMENT OF THE CASE
Appellant was charged by indictment with first degree burglary by unlawfully entering the dwelling house and inhabited portion of a building, occupied by Benjamin and Ilene Y. At the time of entry, appellant had the intent to commit larceny and a felony.
The matter was tried before a jury. On February 1, 2016, the jury returned a verdict finding appellant guilty as charged. On February 26, 2016, the trial court sentenced appellant to state prison for the middle term of four years, suspended execution of the sentence, and imposed a probationary sentence of three years. Certain conditions were imposed: appellant was to serve 34 days in custody with credit for time served; he was to participate in counselling as directed by the probation department; and he was to complete high school. In addition, the trial court indicated it would remove the suspended four-year prison sentence if, after one year, appellant had finished his high school requirements and sustained no new violations of probation.
Appellant filed his notice of appeal on March 24, 2016.
STATEMENT OF FACTS
During the month of February 2015, Ilene Y. and her son Ben were residing in a two-bedroom home on Everett Street in El Cerrito. On February 17, 2015, Ilene went to work at approximately 8:00 a.m. and she returned around 5:00 p.m. Ben and a friend, Oren Becker, left the house for lunch around 12:30 p.m. Becker left his cell phone on the couch in the home. As he exited the residence, Ben locked the front door.
The two youths returned home approximately 45 minutes later. When they approached the home, they noted the front door was ajar. Inside the residence, they saw the bathroom window also was ajar and the screen on the window was damaged. A ladder from the back yard was attached to the bathroom window.
The interior of the home was in a very disrupted state. Items were strewn all over the floors of the two bedrooms and kitchen drawers were opened. Ben's laptop, which had been in his bedroom, was missing, along with the backup hard drive, cell phone charger, recording headphones, one of his four guitars, some marijuana, and a marijuana grinder. Becker's cell phone, left behind on the living room sofa, was missing. Items of personal jewelry belonging to Ilene Y. were taken from her bedroom.
Once Ben Y. discovered this situation, he notified the police immediately. Officer Joshua Del Prado came to the home and inspected it. Ben showed Del Prado the surveillance cameras located on the exterior of the home of Ben's neighbor, Michael Novello. Novello played the video for the officer and Ben. While viewing the video footage depicting the exterior bathroom window area that faced Novello's cameras, Ben recognized a person he met through his friend George. When Ben contacted George by phone, George indicated the person described was Zach Beeche, appellant. During the trial, Ben Y. identified appellant as the person depicted in the surveillance video.
Neither Ilene Y. nor her son Ben had allowed appellant permission to enter their home or take property. Becker did not give permission to anyone to steal his cell phone.
During the trial, the neighbor, Novello, provided the foundation for the surveillance video originating from his camera in the front of his home and along the side of the house facing the Y. bathroom window. The camera in the front of the Novello home produced a video showing a white BMW sedan going by the home and returning on the opposite side of the street, eventually parking in front of the Y. residence. A male wearing a red shirt and khaki pants got out of the car from the driver's side. Later, the video shows the same man in the red shirt opening the trunk of the BMW, placing a guitar in it. Another person opened the right rear door of the vehicle and placed items of property in the car. Then the person in the red shirt reentered the driver seat and the other man returned to the passenger side of the car. The BMW then drove off.
The video from the side of the Novello home shows the man in the red shirt walk up to the front of the Y. home and turn towards the front door of the residence. He is later seen walking from the rear of the residence to the walkway alongside the residence. He stopped in front of a window, pulling on the window but not opening it. He finally returned to the window with a ladder. He climbed the ladder, opened the window, and eventually tore the screen off the frame. He hoisted himself into the room off the ladder. The video clearly shows the burglar's facial features as he walks between the Y. and Novello homes.
Ben testified appellant had been in his home for the first time six months previously. When appellant came he was with George. While there for short time, the three teenagers chatted and smoked marijuana.
On February 17, the day of the burglary, appellant and another male went to the Complete Entertainment Exchange (CEX) in Berkeley, a business that purchases second-hand electronics for resale. Appellant used his identification to sell a MacBook Pro laptop, hard drive, and two iPhones. The merchant gave appellant receipts for each item sold.
On the same day, appellant went to the El Cerrito Police Department with his parents. He was interrogated by Detective Edwin Jacala. At the time of the interview, which took place after the burglary, appellant was wearing a red shirt with khaki pants and the same type of running shoes witnessed in the video from the Novello home. Initially, appellant denied he entered the Y. home. After receiving his Miranda warnings, appellant declared: "[I]t's my fault." Asked to explain this statement, he admitted he used a key to cut the screen to the bathroom window, reached into the window, and entered the house through the window he opened. Additionally, appellant admitted taking the computer equipment inside the home, as well as cell phones and a guitar. He pawned the laptop at a pawn shop.
During his interrogation, appellant admitted he knew Ben Y., claiming he had been at the home approximately four times. Appellant went to the home on February 17 to purchase marijuana. He claimed he called out Ben's name before entering the residence.
Following the questioning by police, Detective Jacala took appellant to his residence, an apartment shared with his girlfriend, Maria Carlon. A white BMW like the car in the video was parked in front of the home. Carlon provided the police with two garbage bags containing various items, along with a guitar appellant brought to the residence on February 17. In the trash bags was a marijuana grinder and electronic equipment used for storing music. These items were originally in the Y. home. Carlon told police appellant told her when he left their home that day he was going with his friend James to a home to get marijuana. Carlon was home when appellant returned and he told her he entered the home and had taken "stuff." Appellant then decided to turn himself in to police. Eventually, appellant was booked at the police department. During a search of his property, the booking officer found a receipt from CEX in appellant's pocket. The receipt indicated he sold a laptop computer for approximately $400.
On February 18, 2015, Detective Jacala went to the CEX store and recovered the laptop, a hard drive, and cell phones; these items were identified by Ben and Becker as property stolen in the burglary.
At the completion of the prosecution case, the defense presented no additional evidence for the jury's consideration. The jury returned a verdict of guilty approximately one hour after the case was submitted to them. During the deliberations, no questions or notes from the jury were submitted to the court.
ANALYSIS
The indictment in this case charged appellant with first degree residential burglary. It alleged "on or about February 17, 2015, at El Cerrito, in Contra Costa County, the Defendant . . . did unlawfully enter a dwelling house, and inhabited portion of a building, which was inhabited by Benjamin Isaiah [Y.] and Ilene [Y.] and located at [XXX] Everett Street, with the intent to commit larceny and a felony."
During the trial, defense counsel requested the court to instruct on the unauthorized entry of a dwelling, a violation of section 602.5, as treated in CALCRIM No. 2932. Counsel requested this as a lesser included or lesser related offense. The prosecutor objected to the instruction, claiming the offense was not a lesser included crime and would mislead the jury. In denying appellant's request, the court indicated, "I've been in this business for 28 years now and so for nigh on about 20 of those years lesser related's have not been required." Hence, the burglary charge was the only crime on which the jury was instructed.
The trial court has a sua sponte obligation to instruct the jury on any uncharged offense that is lesser than, and included in, the greater charged offense, but only if there is substantial evidence supporting a determination by the jury the accused was guilty of the lesser crime. "An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test)." (People v. Parson (2008) 44 Cal.4th 332, 349; see People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.) In our review of the issue, we engage in a de novo or independent review of the issue regarding the court's failure to instruct. (People v. Simon (2016) 1 Cal.5th 98, 133.)
A review based on the elements test involves the strict assessment of the elements of the greater and lesser offenses, but not the facts of the case. (People v. Ramirez (2009) 45 Cal.4th 980, 985.) The essential question is whether all the elements of the corpus delicti of the lesser crime are included in the elements of the greater offense. (People v. Lopez (1998) 19 Cal.4th 282, 288.) Essentially, in such analysis, only if one cannot commit the greater offense without committing the lesser crime, can the latter be a lesser included crime within the greater. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.)
Our evaluation of the issue using the accusatory pleading test requires us to assess whether the accusatory pleading describes the greater crime in such a manner that if committed in the fashion described, the lesser must necessarily also be committed. Under this test, the evidence actually admitted during the trial is not relevant to a determination of the status of a crime as a lesser included. (People v. Wright (1996) 52 Cal.App.4th 203, 208.) If the charging information identifies the crime based on its statutory language, only the statutory elements are relevant for determining if the uncharged crime is a lesser included offense of the charged greater crime. (People v. Moussabeck (2007) 157 Cal.App.4th 975, 981.)
Appellant argues residential trespass is a lesser included offense of residential burglary. Section 602.5, subdivision (a), defines the statutory offense of residential trespass. That section provides: "Every person other than a public officer . . . who enters or remains in any noncommercial dwelling house, apartment, or other residential place without the consent of the owner . . . is guilty of a misdemeanor." On the other hand, section 459 defines the greater offense charged here in the information, burglary. Section 459 provides: "Every person who enters any house, room, [or] apartment . . . with intent to commit grand or petit larceny or any felony is guilty of burglary."
While under common law burglary required a trespassory entry, the statutory definition of burglary in California has eliminated the "breaking" requirement and a trespassory entry is not a necessary element of the offense. (People v. Barry (1892) 94 Cal. 481, 482; People v. Lowen (1895) 109 Cal. 381, 383.) The focus for burglary is the intent of the actor when he or she enters the property, even if entry itself is with the permission of the owner or his or her agent. (People v. Frye (1998) 18 Cal.4th 894, 953-954, overruled on another point in People v. Doolin (2009 45 Cal.4th 390, 421, fn. 22; People v. Talbot (1966) 64 Cal.2d 691, 700.)
We are not the first court to face the issue whether trespass is a lesser included crime to burglary under the elements test in California. On at least four instances, the California Supreme Court has determined trespass is a lesser related but not a lesser included offense of burglary. "Regardless of defendant's legal and factual theories concerning how his conduct may have constituted trespass, that potential crime nonetheless remains at most a lesser related to (but not included in) the offense of burglary." (People v. Foster (2010) 50 Cal.4th 1301, 1344, italics added; see People v. Taylor (2010) 48 Cal.4th 574, 622; People v. Birks (1998) 19 Cal.4th 108, 118, fn. 8; People v. Pendelton (1979) 25 Cal.3d 371, 382.) One can commit the necessary entry for burglary without a trespass. One can have permission to enter a residence and, with the proper felonious intent, commit a burglary. (People v. Frye, supra, 18 Cal.4th at p. 954.)
In assessing appellant's claim of error relying on the accusatory pleading test, we conclude the facts alleged in the accusatory pleading or information detailed earlier in the opinion do not support a claim the elements of burglary necessarily include all the elements of trespass. Summarily stated, the facts alleged in this information contend appellant "did unlawfully enter a dwelling house" inhabited by Ilene and Benjamin Y. "with the intent to commit larceny and a felony." In People v. Birks, supra, 19 Cal.4th at p. 118, fn. 8, the Supreme Court found identical language precluded a determination criminal trespass was a lesser included offense of burglary. "Nor did the allegations set forth in Count 1 of the instant information necessarily include criminal trespass. Count 1 simply alleged that defendant 'did willfully and unlawfully enter a commercial building . . . with intent to commit larceny and any felony.' " (Ibid.) As Birks acknowledges, appellant here could have committed burglary without committing a trespass. (Id. at pp. 117-118.)
Appellant's reliance on certain cases in his brief is misplaced. One case, People v. Wetmore (1978) 22 Cal.3d 318, superseded by statute as stated in People v. Elmore (2014) 59 Cal.4th 121, 143, involved the legal issue of a defendant's mental capacity and whether such condition precluded his formulating specific intent to commit burglary. (Id. at pp. 322, 327.) Our appellant presented no such issue triggering an instruction focusing on his mental capacity to formulate the necessary intent for burglary. In People v. Waidla ( 2000) 22 Cal.4th 690, the defendant contended the trial court erred in failing to instruct on the lesser crime of trespass. The court affirmed he in fact committed the greater crime and only discussed trespass as a lesser included offense in dicta, not holding it was properly a lesser included offense. (Id. at p. 733.) We therefore conclude that under either theory asserting the lesser included offense doctrine, appellant's contention lacks merit.
We also review whether the trial court had a duty to instruct on trespass because there was "substantial" evidence that would have supported the jury finding of only trespass but not burglary. Substantial evidence will arise if a jury could conclude beyond a reasonable doubt the lesser crime was committed. (People v. Manriquez (2005) 37 Cal.4th 547, 587-588.) Evidence that is speculative, minimal, or insubstantial is not sufficient to obligate a court to instruct on a lesser offense. (People v. Mendoza (2000) 24 Cal.4th 130, 174.) Here, appellant initially told police he was going to Ben's home to purchase marijuana. Later, in the same interview, he denied he entered the residence. Then he stated he did enter the home but only to visit with Ben. However, he also acknowledged cutting the screen on the bathroom window and entering the residence through that window. The surveillance video showed appellant using a ladder that was not his to enter through the window after casing the residence to confirm no one was present in the home. Once inside, the physical evidence supported the conclusion the home was truly ransacked, with drawers opened throughout. If we assume appellant went to the residence only to obtain marijuana, as he claimed, the facts disclose that in the brief time inside he took numerous items of property belonging to Benjamin and his mother, including her jewelry, and his electronic equipment, laptop, and guitar. Without question, the process of entry and the level of taking that took place within the short time appellant and his accomplice were inside the residence only supports a conclusion of felonious intent at entry, not mere trespass.
Finally, if there was error by the trial court in its decision to refrain from instructing on trespass as a lesser offense on this record, we conclude any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) We apply this test of prejudice when there is a challenge to the instructions generally. (People v. Breverman (1998) 19 Cal.4th 142, 177-178.)
When we engage in such review, we evaluate the entire record in the case. Under the harmless error analysis, "[t]he failure to instruct on a lesser included offense in a noncapital case does not require reversal 'unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.' [Citations]. 'Such posttrial review focuses not on what a reasonable jury could do, but what a jury is likely to have done in the absence of the error under consideration.' " (People v. Thomas (2012) 53 Cal.4th 771, 814, fn. omitted.) We must assess whether the evidence supporting the verdict " 'is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (Ibid.) "Such instructions are required only when there is substantial evidence that, if the defendant is guilty at all, he is guilty of the lesser offense, but not the greater." (People v. Wyatt (2012) 55 Cal.4th 694, 704, italics added; People v. Nelson (2016) 1 Cal.5th 513, 538.)
The prosecution's evidence presents a classic scenario for the felony crime of burglary. From the video details of the approach and entry of the residence to the process of ransacking the home once inside to the details of the taking and property recovery, there is no conclusion other than an intent to commit burglary exists in this case. All rooms, including the mother's personal bedroom where her jewelry was kept, were upset by appellant. The lone evidence of his lack of felonious intent was contained in his statements to the police introduced by the prosecution—statements regarding a desire to visit the victim Ben Y., which were preceded by a denial appellant ever entered the residence. Based on this evidence, there was no prejudice to appellant by the failure to instruct on trespass as he requested. Similarly, we find, on the facts recited above, at best, harmless error under the more stringent test of Chapman v. California (1967) 386 U.S. 18, 36.
CONCLUSION
We conclude the requested instruction on criminal trespass was not necessary because trespass is not a lesser included offense of burglary. We also find substantial evidence does not support the legal obligation of the trial court to instruct on trespass. If any error did arise, however, the mistake was harmless under any standard of review.
DISPOSITION
We affirm the judgment.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Margulies, J.