Opinion
A148929
07-10-2017
THE PEOPLE, Plaintiff and Respondent, v. KEITH COSTELLO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. SCN225093)
A jury convicted Keith Costello of second degree burglary (Pen. Code, §§ 459, 460) and misdemeanor petty theft (§ 484, subd. (a)) and the trial court suspended imposition of sentence and placed him on probation. Costello appeals, contending the court erred by: (1) admitting his confession because it was obtained in violation of Miranda; (2) declining to instruct the jury on voluntary intoxication (CALCRIM No. 3426); and (3) failing to instruct the jury on trespass (CALCRIM No. 2932).
All undesignated statutory references are to the Penal Code.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Clock Tower Lofts Building (building) in San Francisco has residences and work spaces. The front door of the building is locked. Surveillance cameras monitor the building. In July 2015, two people witnessed Costello steal packages from the communal mailbox area of the building. A man working in the building heard a rustling noise in the back stairwell. Then that man saw a person — later identified as Costello — run past him and down the hallway toward the front door. There were open boxes sitting in the hallway and "it was apparent that somebody had been going into the boxes." Costello ran out the front door and out of the building; the man yelled "thief" at Costello. Another man, then a building resident, was leaving the building when he saw a man — later identified as Costello — "scurr[y] past . . . at a very fast pace." Costello was "holding eight or nine packages." The resident followed Costello. When he got outside, Costello ran. The resident yelled at Costello to drop the packages. Costello "dropped all the packages, and he kept running."
Two plainclothes San Francisco Police Officers, including Officer Anthony Scafani, happened to be nearby. The officers saw Costello running, and heard a man yelling at Costello to drop the packages. Officer Scafani saw Costello drop a small white box as he ran. Officer Scafani identified himself as a police officer and tackled Costello, whose momentum sent them crashing into a glass window, breaking it and cutting Costello's arm. The officers called for an ambulance; Costello "was evaluated, treated and released back into [the officers'] custody at the scene." In the street, Officer Scafani found five packages Costello had dropped; in the communal mailbox area of the building, Officer Scafani found boxes that had been opened.
Officer Scafani interviewed Costello at the police station. Costello had been a firefighter, but was injured at work and it "snowballed into opiates." At the time of the incident, Costello was homeless and unemployed. He used heroin and speed "recreation[ally]." Costello admitted he went into the building to steal items and sell them to "get a room for the night." He got into the building by following someone through the front door. Costello had stolen packages from the building two other times. He had unused syringes in his backpack.
The prosecutor played a recording of the interview for the jury. At the building, Officer Scafani found an empty box that had contained a water filter. Officer Scafani found the water filter in Costello's backpack.
The jury convicted Costello of second degree burglary (§§ 459, 460) and misdemeanor petty theft (§ 484, subd. (a)). The court suspended imposition of sentence and placed Costello on probation with various terms and conditions.
DISCUSSION
I.
Costello's Miranda Claim Fails
Costello claims the court erred by admitting his confession because it was obtained in violation of Miranda.
A. Background
Before trial, the prosecutor moved to admit Costello's confession. At a hearing, Officer Scafani testified he and another officer interviewed Costello at the police station, about 90 minutes after Costello's arrest. Officer Scafani Mirandized Costello, who said he understood his rights. Costello's answers to Officer Scafani's questions were clear, prompt, and responsive. Officer Scafani did not ask Costello whether he was under the influence of drugs, but he observed no objective signs that Costello was under the influence. The syringes found in Costello's backpack had not been used, and Costello denied a drug addiction, claiming he used drugs "recreation[ally]." Costello's arm was bloody, but when Officer Scafani asked Costello whether he was injured, Costello said he was not, and described the wound as a "scratch on [his] arm."
The court listened to a recording of the interview and determined the confession was admissible. First, the court noted an express waiver of Miranda rights was not required. Next, it found that under the totality of the circumstances, Costello was "properly Mirandized, and he knowingly, intelligently and voluntarily waived his rights." The court explained that Officer Scafani saw no objective signs of intoxication, the syringes were unused, Costello understood Officer Scafani's questions and responded "appropriately," and that Costello declined medical attention for the scratch on his arm.
B. Costello's Confession Was Voluntary
"Both the state and federal Constitutions bar the prosecution from introducing a defendant's involuntary confession into evidence at trial. [Citations.] . . . [¶] . . . [¶] 'The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made.' [Citation.] 'Whether a confession was voluntary depends upon the totality of the circumstances.' [Citations.] 'On appeal, we conduct an independent review of the trial court's legal determination and rely upon the trial court's findings on disputed facts if supported by substantial evidence.' [Citation.] The facts surrounding an admission or confession are undisputed . . . making the issue subject to our independent review." (People v. Linton (2013) 56 Cal.4th 1146, 1176-1177.)
Costello claims his confession was not voluntary because Officer Scafani did not ask him to waive his Miranda rights. But as Costello acknowledges, police are not required to obtain an express waiver of Miranda rights before interrogating a suspect. (See Berghuis v. Thompkins (2010) 560 U.S. 370, 387.) "The Miranda rule and its requirements are met if a suspect receives adequate Miranda warnings, understands them, and has an opportunity to invoke the rights before giving any answers or admissions." (Ibid.) Here, the Miranda rule and its requirements were met because Officer Scafani gave the Miranda warnings, and Costello understood them and voluntarily answered Officer Scafani's questions.
We reject Costello's claim that his confession was not voluntary because Officer Scafani did not determine whether Costello was under the influence of drugs during the interview. The California Supreme Court "has repeatedly rejected claims of incapacity or incompetence to waive Miranda rights premised upon voluntary intoxication or ingestion of drugs, where, as in this case, there is nothing in the record to indicate that the defendant did not understand his rights and the questions posed to him." (People v. Clark (1993) 5 Cal.4th 950, 988, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Nor are we persuaded by Costello's suggestion that his confession was somehow involuntary because he was "suffering from a drug addiction" and an injury. In the interview, Costello denied a drug addiction and claimed he used drugs recreationally; he also refused medical attention for what he described as a "scratch on [his] arm."
The court did not err by admitting Costello's confession. (People v. Linton, supra, 56 Cal.4th at pp. 1170, 1171-1173.) Having reached this result, we decline to consider whether any assumed error in admitting the confession was prejudicial.
II.
Costello Was Not Entitled to a Voluntary Intoxication Instruction
Next, Costello claims the court erred by declining his request to instruct the jury on voluntary intoxication (CALCRIM No. 3426).
After the close of evidence, defense counsel requested an instruction on voluntary intoxication. Counsel argued "there is circumstantial evidence, maybe slight, . . . that [Costello] was intoxicated." Counsel urged the court to discount the officers' testimony that Costello did not appear to be under the influence because "those officers were not used as expert witnesses." The court declined to give the instruction, explaining: "[T]here was testimony that syringes were found in his backpack. The testimony was that they were unused. The testimony was from the officer that there were not objective signs of intoxication, and there was no . . . testimony by Mr. Costello himself that he was so intoxicated . . . he didn't know what he was doing. [¶] So . . . there was no evidence to indicate at the time of the incident or of his interview that he was in fact intoxicated."
Defense counsel misstated the number of the instruction, but that misstatement was immaterial and does not affect Costello's claim on appeal.
Voluntary intoxication may negate the existence of a specific intent. (People v. Williams (1997) 16 Cal.4th 635, 677.) Burglary is a specific intent offense (People v. Montoya (1994) 7 Cal.4th 1027, 1052) and a defendant is entitled to an instruction on voluntary intoxication if there is "substantial evidence of [his] voluntary intoxication and the intoxication affected [his] 'actual formation of specific intent.' " (Williams, at p. 677.) "A party is not entitled to an instruction on a theory for which there is no supporting evidence." (People v. Memro (1995) 11 Cal.4th 786, 868, overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172.)
Here, there was no evidence Costello was under the influence of drugs when he committed the crimes. Office Scafani did not observe any objective signs of intoxication when he interviewed Costello; during the interview, Costello did not claim he was under the influence of drugs. At trial, defense counsel conceded the evidence of intoxication was "slight," not substantial. On appeal, Costello "points to no evidence suggesting that he was intoxicated at the time of the crimes." (People v. Myles (2012) 53 Cal.4th 1181, 1217.) That Costello was purportedly "addicted to drugs" and had unused syringes in his backpack does not constitute substantial evidence Costello was under the influence of drugs on the day of the incident, nor that the intoxication affected his ability to form the requisite intent. (Ibid.; see also People v. Ivans (1992) 2 Cal.App.4th 1654, 1661.)
We conclude the evidence was insufficient to warrant the voluntary intoxication instruction and the court's proper refusal to instruct the jury did not violate Costello's constitutional rights. (People v. Roldan (2005) 35 Cal.4th 646, 716 [rejecting the "defendant's claims of constitutional error" where the court properly refused to instruct the jury on voluntary intoxication], disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Having reached this conclusion, we need not address the parties' arguments regarding prejudice.
III.
Costello Was Not Entitled to an Instruction on Trespass
Costello argues the court erred by failing to sua sponte instruct the jury on "the lesser included offense of trespassing" (CALCRIM No. 2932). This argument fails because "trespass is a lesser related offense, not a lesser included offense." (People v. Foster (2010) 50 Cal.4th 1301, 1343.) A trial court has no sua sponte duty to instruct on lesser related offenses. (Id. at p. 1344.) Nor was Costello entitled to a trespass instruction based on the accusatory pleading test. In People v. Birks (1998) 19 Cal.4th 108, our high court rejected an identical argument, and Costello has not persuaded us that case is distinguishable or wrongly decided. Additionally, substantial evidence did not support a jury finding of trespass rather than burglary. As discussed above, the evidence overwhelmingly demonstrated Costello entered the building with the intent to steal; there was no evidence supporting the defense theory that Costello went into the building to use the restroom. Finally, we reject Costello's claim that the failure to instruct the jury on trespass was "an error of federal constitutional magnitude." (People v. Taylor (2010) 48 Cal.4th 574, 622.)
Because Costello was not entitled to an instruction on trespass and because the evidence did not support giving the instruction, trial counsel was not ineffective for failing to request it. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.