Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07SCR03687
RAYE, J.
While performing drywall and other work at a ranch and duck club, defendant Michael Anthony Cevallos parked a trailer on the owner’s property, poached electricity and water, and stole an all-terrain vehicle. A jury found defendant guilty of burglary and of unlawfully driving and taking a vehicle. (Pen. Code, § 459; Veh. Code, § 10851.) Sentenced to three years in state prison, defendant appeals, arguing the trial court erred in allowing him to represent himself and committed various instructional errors. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
An information charged defendant with burglary, possession of stolen property, and unlawfully driving and taking a vehicle. (Pen. Code, §§ 459, 496, subd. (a); Veh. Code, § 10851.) The information also alleged defendant served a prior prison term. (Pen. Code, § 667.5, subd. (b).) Defendant pled not guilty but admitted the prior prison term.
A jury trial followed. The possession of stolen property count was dismissed on the motion of the prosecution. The following scenario emerged at trial.
Carl Hall, owner of a ranch and duck club, hired defendant to do drywall and other work on some outbuildings on Hall’s property while Hall was away. The work was to be completed during the month of November 2006. However, several months went by and defendant failed to finish the project. Hall told defendant to take his “stuff” and leave the property.
Shortly before the first part of March 2007, defendant called Hall and offered to paint Hall’s workshop. Hall refused the offer and again told defendant to leave. Defendant asked Hall when he would return to the property, and Hall told him it would not be for “quite a while.”
Hall returned to the property early in March. He saw a trailer parked behind the workshop with tin sheets shielding it from observation from the road. Electrical wires and a water hose ran from the workshop into the trailer. Hall never gave defendant permission to park the trailer on his property or to take his electricity or water.
Hall also discovered unauthorized work had been done on the property. He entered the workshop, which was locked, and discovered a “four wheeler” all-terrain vehicle was gone. Hall had not given defendant permission to go into the workshop.
Hall drove to town to telephone the sheriff. On the way, he saw defendant in front of a house, sitting on the all-terrain vehicle and talking to someone. Hall stopped and asked defendant what he was doing. Defendant dropped his head and said he should not have taken the vehicle. Hall told defendant to return the vehicle; he then contacted the sheriff’s department. The store owner later told Hall that defendant had come to the store on the all-terrain vehicle a day or two before. The deputy who responded discovered the front fender of the vehicle had been damaged.
The jury found defendant guilty of burglary and of unlawfully taking and driving a vehicle. The court sentenced him to three years in prison: the middle term of two years for burglary, plus a one-year term for the prior prison term enhancement. The court further sentenced defendant to the upper term of three years for taking a vehicle, to be served concurrently with the burglary sentence. Defendant filed a timely notice of appeal.
DISCUSSION
Self-Representation
Defendant argues the court erred in permitting him to represent himself after he made an equivocal statement concerning his self-representation. According to defendant, the court’s action denied him his right to counsel under the federal and state Constitutions.
Background
On March 6, 2007, during his arraignment, defendant signed a statement of rights and requested to represent himself. The statement of rights informed defendant he was entitled to: “The right to represent yourself in court without a lawyer. However, because of the maximum penalties which the Court can impose, it is suggested that you think twice about representing yourself without a qualified lawyer, because your decision to represent yourself may have serious consequences.”
The March 6, 2007, hearing was not reported. It appears defendant, representing himself, entered a not guilty plea. Defendant continued to represent himself in subsequent proceedings, referring to himself as a “special priviledged [sic] person.” Prior to the preliminary hearing, defendant requested cocounsel. The court denied the request. After he was provided with assistant counsel, defendant requested counsel be removed because, defendant argued, assistant counsel was not supposed to be involved in the proceedings.
On March 14, 2007, during the preliminary hearing, defendant made a variety of motions and cross-examined a witness. Defendant had difficulty both with conducting the cross-examination and following courtroom procedures. However, defendant continued to represent himself during the hearing. Defendant briefly referred to a request for cocounsel but never followed up on the request, and the court never issued a ruling.
During arraignment on March 23, 2007, defendant repeatedly failed to respond appropriately to questions posed by the trial court. The court told defendant: “Well, at this time... I’m gonna [sic] enter a not guilty plea on your behalf. You are advised at this time, sir, you are entitled to be represented by a lawyer. If you want [a] lawyer and cannot afford a lawyer, one will be appointed to represent you. [¶] Are you still seeking self-represented status, Mr. Cevallos?” Defendant responded: “I’m not sure. You didn’t hear me, Your Honor, so I’ll restate it.” The court, concerned about defendant’s behavior, considered revoking defendant’s self-representation. However, the court permitted defendant to continue representing himself for the remainder of the case.
Defendant continued, for the duration of the proceedings, to refer to himself as a “pro per” defendant. In one motion defendant described himself as “A special priviledged [sic] person [who] will stipulate to represent myself in the interest of justice.” In another motion, defendant stated: “Defendant fully knows that he’s not a lawyer, and defendant is not asking the court to help defendant.”
During a pretrial hearing, the prosecution questioned whether defendant was capable of self-representation. The court continued to allow defendant to represent himself, reasoning: “But, sir, once again, the fact that you’re representing yourself, as I advised you at the inception of your self-representation -- that sometimes that puts you at a very significant disadvantage; that you are dealing with lawyers on the other side of the case who have been practicing in the criminal law arena for a great number of years and thus would have a significant advantage over you. Having been advised of that, you elected to continue with your self-representation.”
The court suggested to defendant that he reconsider his desire for self-representation. However, defendant did not indicate he wanted to relinquish that right.
Discussion
A defendant has the right to represent himself if he voluntarily and intelligently elects to do so. (Faretta v. California (1975) 422 U.S. 806, 835 [45 L.Ed.2d 562].) The request for self-representation must be unequivocal. The right is forfeited unless the defendant articulately and unmistakably requests to represent himself. (People v. Valdez (2004) 32 Cal.4th 73, 98-99.) A motion made out of a temporary whim, annoyance, or frustration is not unequivocal, even if the defendant states he is seeking self-representation. (People v. Marshall (1997) 15 Cal.4th 1, 21 (Marshall).)
Defendant bears the burden of demonstrating that he did not knowingly and intelligently waive his right to counsel. (People v. McArthur (1992) 11 Cal.App.4th 619, 627.) We review the entire record, including defendant’s statements and conduct, to determine whether defendant truly wished to give up the right to counsel and made this unequivocally clear to the trial court. (Marshall, supra, 15 Cal.4th at pp. 25-26.)
Almost two weeks and several court appearances after his initial request to represent himself and his assumption of the burdens of self-representation, defendant engaged in the interchange with the court in which the court asked if defendant was still seeking to represent himself. Defendant then responded: “I’m not sure. You didn’t hear me, Your Honor, so I’ll restate it.” It is this exchange on which defendant focuses an appeal. Defendant contends his response to the court’s query regarding self-representation was ambiguous and equivocal and therefore defendant never waived his right to counsel.
However, defendant’s brief comment must be considered in light of the entire record, including defendant’s words and conduct. (Marshall, supra, 15 Cal.4th at pp. 25-26.) From the outset, defendant sought to represent himself, referring to himself as a “special priviledged [sic] person.” He later rejected the aid of assistant counsel. Defendant made motions and cross-examined a witness.
After the exchange defendant zeroes in on, he continued to label himself as a pro. per. defendant in motions and pleadings. Even after the trial court cautioned defendant during the pretrial hearing about representing himself, defendant never indicated at any time a desire to relinquish that right and allow counsel to represent him.
We disagree with defendant’s analysis of his actions after the exchange in question. Defendant asserts that “[a]nything that happened” after the exchange “is just as likely a mere resignation to a reasonable belief that the judge decided his representation status notwithstanding [defendant’s] stated uncertainty.” Nothing in defendant’s actions, or lack of action, strikes us as mere resignation. Defendant sought self-representation, obtained the right to represent himself, and never requested relinquishment of that right. In context, defendant’s subsequent, brief “I’m not sure” does not undermine the rest of his words and actions. We find no error.
Instructional Error
Elements of Burglary
Defendant argues the court erred in failing to instruct the jury on the elements of theft as a target offense of burglary. According to defendant, this failure allowed the jury to find him guilty of burglary by believing he intended to commit theft at the time he entered the workshop, but without any analysis of whether his intent “embraced all of the component elements of burglary.”
The court instructed the jury that in order to find defendant guilty of burglary, the prosecution must prove that defendant entered a building, and that when he entered the building he intended to commit theft or taking of a motor vehicle. The court also instructed that “[t]o decide whether the defendant intended to commit theft or taking of a motor vehicle please refer to the separate instructions that I will give you on that crime.” The jury was not instructed on the elements of theft, but was instructed with CALCRIM No. 1820 on unlawful taking or driving of a vehicle.
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. (People v. Breverman (1998) 19 Cal.4th 142, 154.) The general principles of law governing the case are those principles closely and openly connected with the facts before the trial court, and which are necessary for the jury’s understanding of the case. (Ibid.)
In a burglary case, the trial court must identify and define the elements of the target offenses the defendant allegedly intended to commit upon entry into the building. (People v. Hughes (2002) 27 Cal.4th 287, 349 (Hughes).) Here, the court identified “theft or taking of a motor vehicle” as the target offense. It instructed pursuant to Vehicle Code section 10851 on the elements of the unlawful taking or driving of a vehicle. The cited section defines the elements as unlawful driving or taking a vehicle not his or her own, without the consent of the owner, and with the intent to either deprive the owner of title to or possession of the vehicle. However, the court did not instruct on the elements of theft. According to defendant, this omission left the jury without a complete decisional framework; the jury lacked the information to judge whether defendant had the intent required for theft.
Penal Code section 484 defines theft as feloniously stealing, taking, carrying, leading, or driving away the personal property of another. In most instances, theft requires an intent to permanently deprive the owner of the property, while vehicle taking under Vehicle Code section 10851 requires only an intent to temporarily deprive. Defendant argues the failure to instruct on the intent required for theft leaves us to speculate on whether the jury based its verdict on a belief that he intended to steal the vehicle (intent to permanently deprive) or to take the vehicle (intent to temporarily deprive).
The Attorney General argues that theft does not require an intent to permanently deprive the owner of possession but can be satisfied by an intent to deprive the owner of a major portion of the property’s value or enjoyment. However, in this case, the evidence reveals only that defendant drove the all-terrain vehicle during a time he did not expect its owner to be present. The evidence does not support the inference that defendant intended to permanently deprive the owner of a major portion of the property’s value or enjoyment.
While the court should have instructed on theft, the court’s failure could not have affected the jury’s verdict. The jury found that defendant took an all-terrain vehicle that was stored in Hall’s locked workshop. The jury was properly instructed that to convict defendant of burglary, he must have entered the shop with the intent to either steal or take the vehicle. Whether he intended to permanently deprive or temporarily deprive would be of significance in determining defendant’s guilt for theft of the vehicle; it is of little significance in determining his guilt of burglary under the facts presented here. Defendant speculates that the jury may have believed that he entered the workshop initially to retrieve his tools or to do some work, and the intent to take the vehicle was formed only after he was already inside. Be that as it may, the failure to instruct on theft does not address the problem of determining when defendant formed his intent to either steal or take the vehicle. Evidence that defendant had innocent reasons to enter the workshop was equally relevant to disprove an intent to either steal or take at the time of entry.
Even if the trial court erred in failing to give a sua sponte instruction, we reverse only if the failure to so instruct was not harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 503.) Here, the jury would still have found defendant guilty of burglary if instructed on the elements of theft based on his intent to take the vehicle.
Unlawful Entry
Defendant also argues the court erroneously failed to instruct on unlawful entry as a lesser included offense of burglary. The trial court has a duty sua sponte to instruct on lesser included offenses when the evidence raises a question as to whether all the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense. (Hughes, supra, 27 Cal.4th at p. 365.)
The Supreme Court has determined trespass (Pen. Code, § 602.5), another form of unauthorized entry, is not a lesser necessarily included offense of burglary. (People v. Birks (1998) 19 Cal.4th 108, 117 (Birks); People v. Lohbauer (1981) 29 Cal.3d 364, 369; People v. Pendleton (1979) 25 Cal.3d 371, 382.) We are bound by the decisions of the Supreme Court. (People v. Zichwic (2001) 94 Cal.App.4th 944, 952-953.)
Defendant contends authority exists questioning whether unlawful entry may be considered a lesser necessarily included offense of burglary, notwithstanding Birks. However, in People v. Sakarias (2000) 22 Cal.4th 596 (Sakarias), the Supreme Court did not reach the issue of whether or not trespass was a lesser included offense of burglary. There was insufficient evidence that the defendant committed a trespass and not a burglary. (Id. at pp. 621-622.)
In People v. Waidla (2000) 22 Cal.4th 690, the Supreme Court accepted the defendant’s argument that trespass is a lesser included offense of burglary “for purposes of discussion only” and determined insufficient evidence supported the instruction. (Id. at pp. 733-735.) Neither Sakarias nor Waidla undermines Birks.
Misdemeanor Vehicle Taking
Finally, defendant argues the court erred in failing to instruct on misdemeanor vehicle taking as a lesser included offense of felony vehicle taking. The prosecution charged defendant with unlawfully driving and taking a vehicle as a felony.
The court instructed the jury on the elements but did not state whether the offense was a felony or misdemeanor. During deliberations, the jury inquired, concerning the Vehicle Code section 10851 charge, “[C]an this charge be lowered to a lesser charge?”
The court proposed telling the jury the case had been submitted based on the charge and they were to make a finding of either guilty or not guilty of the charge. The prosecution stated the People were not unwilling to make the charge a misdemeanor, having offered that to defendant earlier anyway.
The court ultimately instructed the jury that the count had been submitted “to you to vote on guilt[y] or not guilty as it stands. Both parties have submitted that issue to you. That’s the only issue they wish you to decide in this case. Hopefully that’s some assistance to you, but that’s the issue for you to decide, okay.”
The crime of unlawful driving or taking of a vehicle is punishable “by imprisonment in a county jail for not more than one year or in the state prison or by a fine..., or by both the fine and imprisonment.” (Veh. Code, § 10851, subd. (a).) Penal Code section 17, subdivision (b) states: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail,” it is only characterized as a misdemeanor under five specific circumstances. Here, the offense could be a misdemeanor only if the judgment imposed a punishment other than imprisonment in the state prison or the court granted defendant probation without imposition of sentence and declared the offense to be a misdemeanor. (Pen. Code, § 17, subd. (b)(1), (3).)
In the present case, in the context of jury instructions, the misdemeanor offense cannot be considered a lesser included offense of the felony offense. Defendant provides no authority for such an instruction. The jury acts as fact finder; the court possesses the power to sentence defendant to either a misdemeanor or felony sentence. Under Penal Code section 17, the court alone has the discretion to determine the sentence, and thus whether a defendant has committed misdemeanor or felony vehicle taking.
Both parties reference People v. Statum (2002) 28 Cal.4th 682 (Statum) but reach different conclusions. In Statum, the Supreme Court characterized a misdemeanor “wobbler” as a lesser offense of a felony wobbler in the course of interpreting Penal Code section 1238, subdivision (a)(6), regarding the appealability of an order. The trial court reduced the felony conviction to a misdemeanor and imposed a county jail sentence over the People’s objections. (Statum, at p. 685.) In so holding, the court noted: “Our case law has consistently treated the misdemeanor as a lesser offense than the felony wobbler.” (Id. at p. 689.)
However, Statum does not suggest that the issue of whether an offense is a misdemeanor or a felony should be submitted to a jury. In a dissenting opinion, Justice Kennard stated: “[A] wobbler’s dual classification as either felony or misdemeanor did not mean that a wobbler is two distinct crimes: ‘The discretion given as to the punishment certainly does not make the same act two offenses....’ [Citations.] [¶] [A] wobbler is not two separate offenses, one a felony and the other a misdemeanor, but rather a single offense that, in the discretion of the sentencing court, may be classified either as a felony or as a misdemeanor. Thus, we have said that a wobbler is ‘an offense which may be charged and punished as either a felony or a misdemeanor.’ [Citations.]” (Statum, supra, 28 Cal.4th at pp. 698-699.) We do not find Statum supports an instruction on a lesser included offense in the present case. Accordingly, the court did not err in failing to instruct on misdemeanor vehicle taking.
DISPOSITION
The judgment is affirmed.
We concur SCOTLAND, P. J., NICHOLSON, J.