Opinion
B295958
05-26-2020
THE PEOPLE, Plaintiff and Respondent, v. BRYAN MICHAEL MIGLIORI, Defendant and Appellant.
Patricia Ann Dark, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, David E. Madeo, Acting Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA119051) APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Judge. Affirmed. Patricia Ann Dark, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, David E. Madeo, Acting Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.
A trial jury convicted defendant and appellant Bryan Migliori (defendant) of burglary and several misdemeanor offenses. The prosecution presented evidence defendant entered a neighbor's garage to steal a license plate off the neighbor's car; there was also evidence defendant stole other license plates and violated a restraining order that other neighbors had obtained against him. We principally decide whether a garage that shares a common wall with a house is a proper predicate for a first degree (residential) burglary conviction. We also consider whether an Evidence Code section 352 ruling was an abuse of the trial court's discretion, whether there was error in instructing the jury on the significance of defendant's possession of recently stolen property, and whether substantial evidence shows defendant intended to permanently deprive the neighbors of their license plates.
I. BACKGROUND
Colette Balzano (Colette) and her mother, Stephanie Balzano (Stephanie), were defendant's next door neighbors in West Covina. In late 2017, Colette and Stephanie obtained three-year restraining orders against defendant that prohibited him from harassing or contacting them. As Colette and Stephanie would later testify at defendant's trial, they sought the restraining orders because he had "laid his hands on [Colette] and made [her] feel threatened with [her] children," and also stolen Stephanie's mail, spit on her, and slapped her.
The following year, in September 2018, defendant came onto Colette's driveway and threw a trash can on the ground. Then, while Colette and Stephanie were in the driveway talking, defendant yelled at them while waving a screwdriver and a hammer. Colette recorded part of the encounter using the camera on her phone and called the police.
Within about an hour of defendant's confrontation with Colette and Stephanie, another neighbor, Jesus Vergara (Vergara), was returning home from work when he saw defendant stand up from behind a car with a screwdriver and a license plate in his hand. The car was parked across the street from defendant's home. Vergara then watched defendant remove license plates from two other cars parked on the street, and at that point, Vergara called the police.
At around the same time, another neighbor Jose Trejo (Trejo) returned home and parked his car on the street. Trejo partially opened the door to his garage, where another vehicle (a van) was parked, so the garage would cool off. When Trejo came back outside a few minutes later, Vergara indicated a license plate had been removed from the car Trejo parked on the street. Trejo also noticed his garage door was now completely open, and when Trejo went inside, he saw his van was also missing a license plate.
West Covina Police Department officers responded to the calls for assistance placed by defendant's neighbors. Officer Weathermon detained defendant about two blocks away from his home and another officer took defendant to the police station. At the station, Officer Weathermon interviewed defendant (after defendant waived his right to remain silent). Defendant acknowledged Colette and Stephanie had obtained restraining orders against him and he admitted he did not like the women. Defendant also admitted he took the license plates off his neighbors' cars and threw the license plates behind a gate on the north side of his house. Officer Weathermon and another officer recovered two of the license plates from what was described as a small, enclosed alley-type area on defendant's property and returned the plates to their owners. (The plate taken from the car Trejo parked on the street was not found.)
Defendant told Officer Weathermon that he (defendant) was upset because he thought his neighbors were "messing with him" by placing their trash cans in front of his house and "moving vehicles around in front of his house."
The Los Angeles County District Attorney charged defendant with first degree burglary (Pen. Code, §§ 459, 460, subd. (a)) for entry into Trejo's garage and stealing the license plate off the van. Defendant was also charged with six misdemeanor offenses: two counts of disobeying a court order (§ 166, subd. (a)(4)), specifically, the restraining orders protecting Colette and Stephanie; two counts of petty theft (§§ 484, subd. (a), 490.1) for stealing the other two license plates; and two counts of damaging or tampering with a vehicle (Veh. Code, § 10852) for removing the plates from the cars. After a trial, the details of which we shall recount as necessary in resolving the issues raised on appeal, the jury convicted defendant on all charges. The trial court sentenced defendant to an aggregate custodial sentence of five years (four years for the felony burglary and two consecutive 180-day sentences for the two violating a restraining order convictions).
Undesignated statutory references that follow are to the Penal Code.
II. DISCUSSION
Defendant advances four arguments for reversal, none of which carries the day. Defendant argues he cannot be guilty of first degree (residential) burglary for entering Trejo's garage because the garage does not share a roof with the rest of the house and thus, in his view, is not "'functionally interconnected with and immediately contiguous to other portions of the house.'" (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1107 (Rodriguez).) There was substantial evidence at trial, however, that the garage was attached to Trejo's home, and we are not of the view that a shared roof is the sine qua non of a proper burglary predicate. Defendant contends the trial court should not have permitted limited testimony from Colette and Stephanie as to the conduct that led to the issuance of the restraining orders against him, but we hold there was no abuse of discretion in admitting the testimony as evidence of motive and intent for the violations of those orders that were at issue. Defendant also argues there is insufficient evidence to support his convictions for theft and burglary because he did not intend to "permanently" deprive his neighbors of their license plates. (See generally People v. Avery (2002) 27 Cal.4th 49, 55 ["[T]he rule that theft requires the intent to deprive the owner of the property permanently 'is not inflexible: "The word 'permanently,' as used here is not to be taken literally"'"] (Avery).) But his throwing the license plates over a fence into an enclosed area of his property—and the fact that only two plates were recovered—is substantial evidence from which the jury could infer such intent. Finally, defendant contends it was error to give the jury an instruction regarding the significance of his possession of recently stolen property, but defendant's interpretation of the challenged instruction is untenable and all the instructions read as a whole emphasize the separate elements of all the charged offenses.
A. Defendant Was Properly Convicted of Residential Burglary
1. Legal framework
"Every burglary of an inhabited dwelling house, vessel, . . . , floating home, . . . or trailer coach, . . . or the inhabited portion of any other building, is burglary of the first degree." (§ 460, subd. (a); see also People v. Aguilar (2010) 181 Cal.App.4th 966, 970 ["The distinction between first degree burglary of an inhabited dwelling and second degree burglary of an uninhabited dwelling provides 'increased protection for the privacy and enjoyment of one's home'"].) All other kinds of burglary are of the second degree. (§ 460, subd. (b).)
"In keeping with the purpose of the statute, the term 'inhabited dwelling house' has been given a 'broad, inclusive definition.' [Citation.] In particular, courts have consistently determined an attached garage is part of an inhabited dwelling house for purposes of Penal Code section 460." (People v. Fox (1997) 58 Cal.App.4th 1041, 1046 (Fox).) "[T]he essential inquiry is whether the structure is 'functionally interconnected with and immediately contiguous to other portions of the house.' [Citation.] 'Functionally interconnected' means used in related or complementary ways. 'Contiguous' means adjacent, adjoining, nearby or close. (See Webster's Third New Internat. Dict. (1986) p. 492 ['ADJACENT . . . next or adjoining with nothing similar intervening . . . not distant . . . touching or connected throughout']; see also Black's Law Dict. (6th ed. 1990) p. 320, col. 2 ['[i]n close proximity; neighboring; adjoining; . . . in actual close contact'].)" (Rodriguez, supra, 77 Cal.App.4th at 1107.)
In assessing the "immediately contiguous" requirement, relevant structural features include common walls, a shared roof, and connecting doors. (People v. Moreno (1984) 158 Cal.App.3d 109, 112 ["[A] connecting door [is] only one method of demonstrating that a garage [is] an attached and integral part of a dwelling"]; Rodriguez, supra, 77 Cal.App.4th at 1108 [requirement satisfied because "home office adjoined the residence and shared the same roof and a common wall"]; People v. Thorn (2009) 176 Cal.App.4th 255, 262 [requirement satisfied "because here the carports are situated close to and directly underneath the occupied apartments themselves"].)
2. The evidence at trial
Trejo, speaking through an interpreter, testified regarding the connection between his garage and the rest of his home in three exchanges.
In the first, the prosecution simply asked Trejo if his garage was attached to his house, and Trejo answered, "Yes."
Later, when the prosecution's questions turned back to the garage, this was the exchange:
Q. Okay. Is there a gap of any size between the garage and your house?
A. Yes.
The Court: Are the structures connected by a common wall? The garage and your main home.
The Witness: Yes, it has a wall.
Q. By [the prosecution]: Okay. And they share the same roof?
A. No. Because the roof of the house is a little higher than the garage roof.
Q. But they do share a wall?
A. Yes.
The third instance in which Trejo was asked about the garage came during cross-examination—with the trial judge interjecting with a question of his own at one point:
Q. Can you clarify what you mean by it shares a common wall, the house and the garage?
A. Well, the garage is there (indicating [to a photo exhibit in evidence]), and there is a wall in between the garage and the bathrooms.
Q. Okay. So if there was a door to get from the house to the garage, you would be able to just put one up and you—without really doing much, you would be able to walk directly from a room in your house into the garage?
A. No.
Q. What is the common wall that the garage shares with the house?
A. The bedroom ones.
Q. Okay. So if you're in your bedroom and, let's say, you built a door on the wall that connects the bedroom to the garage, would you be able to do something like that?
A. Well, I don't know. I don't believe that can be done.
The Court: Well, is the garage attached to the house?
The Witness: Yes.
The Court: Next question, please.
[Defense counsel]: Nothing further.
The characteristics of Trejo's garage also came up during Officer Weathermon's testimony. He testified he had "a moment to really look at" Trejo's garage when he was on the scene in response to the police calls for assistance. While looking at a photo exhibit depicting Trejo's home, Officer Weathermon testified the garage was attached to the house because the two shared a common wall. Then the prosecution asked:
Q. If one were to take a jack hammer to the wall inside the garage, would one then be able to walk from the garage into the actual home of Mr. Trejo?
A. I believe so, yes.
Q. Is the garage attached for—strike that. [¶] Is the garage functionally connected with the home?
A. Yes.
3. The pertinent jury instruction
The jury was instructed with a version of CALCRIM No. 1701, which provides, in pertinent part, that "[f]irst degree burglary is the burglary of an inhabited house. [¶] A house is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged entry. [¶] A house includes any garage that is attached to the house and functionally connected with it."
During its deliberations, the jury sent the trial court a note asking it to "[p]lease clarify the exact definition of 'functionally connected.'" The answer given by the trial court was adapted from a passage in People v. Ingram (1995) 40 Cal.App.4th 1397, 1404 (Ingram), overruled on other grounds in People v. Dotson (1997) 16 Cal.4th 547: "A structure is functionally connected when it is an integral part of the dwelling, that is, functionally interconnected with and immediately contiguous to other portions of the house. The absence of an inside door is not determinative. [¶] There is no meaningful distinction between an attached garage with an outside door and an attached garage with an inside door for purposes of deciding the degree of burglary."
4. Analysis
Trejo and Officer Weathermon's testimony, combined with a photo of Trejo's garage admitted at trial as People's Exhibit 17, is substantial evidence that entry into Trejo's garage supports his first degree burglary conviction. Officer Weathermon opined the garage and the main part of the house are attached and functionally connected. Trejo likewise testified, twice, that his home and garage share a common wall and are "attached." His testimony that there is a "gap" between the two spaces, a point defendant emphasizes, appears to refer to the gap between the two roofs. Defendant, however, points to Trejo's answer to the question asking whether "[he] would be able to" build "a door on the wall that connects the bedroom to the garage": "Well, I don't know. I don't believe that can be done." But in context of the precise wording of the question, Trejo apparently understood it as one concerning technical feasibility, not interconnectedness. That is perhaps most clearly revealed by his "Yes" answer to the very next question (posed by the trial judge) asking whether the garage is attached to the house. Considered as a whole, the testimony and the photo exhibits are solid evidence that an entry into the garage for felonious purposes can support a residential burglary conviction.
Contrary to defendant's assertion, Officer Weathermon's testimony about Trejo's garage was indeed based on inspection and personal knowledge. He testified he was able to "really look at" Trejo's garage and he relied on People's Exhibit 17 to illustrate the garage and the house share a common wall.
Defendant protests, however, that the trial court's question was "improper" because it "called for a legal conclusion[ ] and terminated the defense inquiry into the important question of whether or not the two structures met the legal criteria established by case law . . . ." That is wrong on both counts. A trial judge has significant latitude to ask clarifying questions (§ 1044; Evid. Code, § 765, subd. (a)), and there was nothing about the question here (whether the garage and the house were attached) that called for an impermissible legal conclusion—which is perhaps why defendant makes no similar complaint about other testimony from Trejo and Officer Weathermon, both of whom testified the house and garage were attached. Further, the record demonstrates the trial judge did not terminate the defense inquiry. Quite the opposite, actually. Immediately after Trejo answered the judge's question, the trial judge said to defense counsel, "Next question, please." It was the defense attorney who then responded, "Nothing further."
Defendant additionally contends the trial court's jury instruction and response to the jury question should have required the jury to find the garage and the main part of the house must have shared a common roof for defendant to be guilty of burglary. Defendant relies on Ingram, supra, 40 Cal.App.4th 1397, which held entry into a garage that shared a roof with a house and carport could support a first degree burglary conviction. (Id. at 1402-1403 ["[A] garage attached to an inhabited dwelling house 'that shares a common roof and is an integral part of said dwelling is considered an inhabited dwelling'"].) But Ingram does not hold a common roof (or an inside connecting door) is invariably required to make a garage a proper predicate for first degree burglary. Rather, Ingram emphasizes "[t]he close physical proximity of an attached structure is . . . what increases the potential for confrontation and threatens the safety of residents," and the opinion makes clear this close physical proximity, expressed in terms of functional connection and immediate contiguity, is the proper touchstone. (Id. at 1404; see also, e.g., Fox, supra, 58 Cal.App.4th at 1045 [approving jury instruction that provided "'[w]here a garage is attached to an inhabited dwelling house and is, therefore, not a separate structure, it is considered to be a part of the inhabited structure'"].) Here, the attached garage was in very close physical proximity to Trejo's house (just steps from the front door) such that an intruder in the garage increased the potential for confrontation. The jury instruction given, and the answer to the jury question posed, were not error.
B. The Trial Court Did Not Err in Admitting Limited Testimony Concerning the Conduct That Triggered the Restraining Orders Against Defendant
Defendant contends the trial court abused its discretion and violated his state and federal due process rights by allowing Colette and Stephanie to testify about the prior circumstances that led to the issuance of restraining orders protecting them from defendant.
The trial court considered defendant's objections to allowing testimony concerning the circumstances that led to the restraining orders during two pretrial hearings. At the first hearing, the trial court reasoned testimony concerning "the basis for the restraining orders [is] relevant . . . because it shows the defendant has a motive to continuously harass these individuals by doing whatever it is alleged that he did to victimize them once again, that he has a personal vendetta against them, and I think that explains a lot for the jury to consider, and motive is relevant, albeit not an element of the crime charged, as the defense mentioned. [¶] So, over defense[ ] objection, I'll permit a limited inquiry as to the basis for the restraining orders being issued in the first place, and that the defendant was, obviously, served and so forth. [¶] But let's not get into any additional, perhaps, conduct between the time the restraining orders were issued and the event of the current case. . . ." The next day, at a second pretrial hearing, defendant's trial counsel requested more time to investigate the bases for the restraining orders and renewed her objections. The trial court explained defendant had had ample opportunity to investigate and reiterated its prior ruling.
The trial court stated: "I am going to permit the People to elicit the basis for these protective orders but not in a detailed manner, just very peripherally at best, just to give the jury an understanding that there has been a history between the complaining witnesses and the defendant which may have led to the acts and conduct that are relevant to the charges to help provide a motive to do these individuals harm of some kind."
"Evidence Code section 350 provides that only relevant evidence is admissible. Evidence Code section 210, in turn, defines relevant evidence as that 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' '"'"The test of relevance is whether the evidence tends '"logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive.'"'"' [Citation.] [¶] 'Inferences drawn from the evidence must be logical and reasonable, not merely speculative.' [Citation.]" (People v. Ghobrial (2018) 5 Cal.5th 250, 282.) Trial courts have broad discretion to exclude relevant evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) "We review rulings regarding relevancy and Evidence Code section 352 under an abuse of discretion standard. [Citation.]" (People v. Linton (2013) 56 Cal.4th 1146, 1181.)
The testimony admitted concerning the reasons why the restraining orders issued was relevant both as to intent and motive. Regarding the former, proof of a violation of section 166, subdivision (a)(4) requires proof that the disobedience was "willful," i.e., done willingly or on purpose. (§ 7(1); CALCRIM No. 2700.) The antagonistic acts that gave rise to the restraining orders are probative of defendant's willful intent to violate them months later, and defendant does not contend otherwise. Instead, he argues the element of willfulness was essentially undisputed and he cites People v. Thompson (1980) 27 Cal.3d 303 (Thompson) for the proposition that "[t]he fact that an accused has pleaded not guilty is not sufficient to place the elements of the crimes charged against him 'in issue.' [Citation.]" (Id. at 315.) But as our Supreme Court clarified in People v. Scott (2011) 52 Cal.4th 452, Thompson has been "all but expressly disapproved" and "a fact—like [a] defendant's intent—generally becomes 'disputed' when it is raised by a plea of not guilty or a denial of an allegation." (Id. at 471.) Defendant pled not guilty to the two disobeying a court order charges, and his intent was therefore in issue. Regarding motive, the trial court acknowledged motive was not an element of the offense, but it was still probative of guilt. That, too, was correct. (See, e.g., People v. Moore (2016) 6 Cal.App.5th 73, 85 ["The prosecution need not, as we know, prove motive. Nevertheless, motive is relevant, and a strong motive provides powerful evidence"].)
Beyond relevance, defendant argues it was an abuse of discretion not to exclude the testimony about why the restraining orders issued as cumulative and prejudicial. The testimony was not cumulative, though, because none of the other evidence identified by defendant illustrates the long-standing animosity between defendant, Colette, and Stephanie. As the trial court reasoned, that history "explains a lot for the jury," and helps establish defendant was directing his hostile remarks at Colette and Stephanie, not talking to himself (as the defense argued to the jury). In addition, the testimony on this subject was brief and the trial court immediately instructed the prosecution to proceed to the "[n]ext question" in both instances. The testimony also was not prejudicial. Defendant argues the contrary because he believes Stephanie's mention of defendant's prior mail theft prejudiced him "'on the issue of appellant's specific intent to steal,'" but Stephanie did not provide any details concerning the alleged mail theft—e.g., why she suspected defendant, when and how many times the theft occurred, and whether the theft involved items of significant value or was primarily a matter of harassment. It is not surprising, therefore, that the prosecution never mentioned this testimony in its argument concerning the theft and burglary counts. Stephanie's passing reference to defendant stealing her mail did not invite the jury to decide whether defendant was guilty of stealing license plates from other neighbors on that basis. (See People v. Case (2018) 5 Cal.5th 1, 43.)
For the same reasons, admission of this evidence did not render the trial "fundamentally unfair" and thereby violate defendant's due process rights. (People v. Partida (2005) 37 Cal.4th 428, 432; see also People v. Covarrubias (2011) 202 Cal.App.4th 1, 20 ["[E]ven the improper admission of evidence of uncharged crimes committed by the defendant does not ordinarily amount to constitutional error"].)
C. Sufficient Evidence Supports the Theft Convictions
"In evaluating a claim regarding the sufficiency of the evidence, we review the record 'in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Westerfield (2019) 6 Cal.5th 632, 713.) "'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.' [Citation.]" (People v. Brooks (2017) 3 Cal.5th 1, 57.)
Section 484, subdivision (a) provides, in pertinent part, that "[e]very person who shall feloniously steal, take, carry, lead, or drive away the personal property of another . . . is guilty of theft. . . ." The "feloniously steal" element, "although often summarized as the intent to deprive another of the property permanently, is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment." (Avery, supra, 27 Cal.4th at 58.)
Defendant contends there is insufficient evidence he intended to deprive his neighbors of their license plates permanently or for an unreasonable time because he removed the license plates "in broad daylight and in front of multiple witnesses, . . . threw them in the yard of a house belonging to his family member, [and] shouted at protected persons[ ] while railing incoherently about trash cans . . . ."
Defendant's argument takes some unjustified liberties with the evidence. Although Vergara saw defendant remove three license plates, he did not see defendant enter Trejo's garage and remove the fourth. Moreover, no witnesses saw defendant throw the license plates into the enclosed alley on his property—where only he had access to them—and the plates were recovered only after defendant told Officer Weathermon where they had been left. Properly understood, the facts do suggest defendant's crimes were not committed in a particularly sophisticated manner, but they do not indicate there is an insufficient basis for the jury's finding that defendant intended to permanently deprive the victims of the license plates. (See, e.g., People v. Casares (2016) 62 Cal.4th 808, 827 [holding that "competing inferences [the defendant] wishe[d] the jury had drawn" did not warrant reversal], disapproved on another ground in People v. Dalton (2019) 7 Cal.5th 166, 214.)
D. The Jury Was Properly Instructed as to the Significance of Defendant's Possession of Recently Stolen Property
The trial court instructed the jury with the following version of CALCRIM No. 376: "If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of residential burglary, theft and vehicle tampering based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed residential burglary, theft and vehicle tampering. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of residential burglary, theft and vehicle tampering. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
CALCRIM No. 376 "prohibits the jury from drawing an inference of guilt based solely on evidence that the appellant knowingly possessed recently stolen property. The jury is allowed, however, to draw an inference of guilt where there is additional supporting evidence, even if the supporting evidence would not be sufficient, by itself, to constitute proof beyond a reasonable doubt." (People v. Lopez (2011) 198 Cal.App.4th 698, 710.) Defendant contends the particular instruction given here was flawed because it refers to "residential burglary, theft and vehicle tampering" in blanks where CALCRIM No. 376 directs courts to "<insert crime>" in the singular. According to defendant, the trial court's conjunctive list of crimes "direct[ed] the jury to convict [him] of all three charges despite there [sic] each having singular elements, including the specific intent upon entry necessary to convict one of a residential burglary."
"When considering a claim of instructional error, we view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner." (People v. Houston (2012) 54 Cal.4th 1186, 1229.)
Nothing in the version of CALCRIM No. 376 given in this case suggests burglary, theft, and vehicle tampering have identical elements or that evidence sufficient to support an inference of guilt as to one of these offenses necessarily supports an inference of guilt as to the others. Indeed, the final paragraph of the instruction expressly reminds the jurors that the "fact[s] essential" to each crime must be proved beyond a reasonable doubt.
Various other features of the trial reinforced the concept that each of the offenses to be proven had different elements that must be separately considered. The trial court instructed the jury that "[e]ach of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one." (CALCRIM No. 3515.) The trial court instructed the jury on the elements of each offense. (CALCRIM Nos. 1700, 1701, 1800, 1821.) The prosecution separately discussed the elements of each offense in its closing argument. Moreover, the jury's question concerning the "exact definition of 'functionally connected'" demonstrates its close attention to the elements of each offense. It did not, for instance, erroneously assume that convicting defendant of petty theft obviated the need to analyze the elements of first degree burglary. Under these circumstances, there is no reasonable likelihood the jury believed it could convict defendant of first degree burglary, petty theft, and vehicle tampering without finding that each element of each offense had been proven beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J. We concur:
RUBIN, P. J.
KIM, J.