Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.), Super.Ct.No. RIF 125429
Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Susan Miller and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
1. Introduction
Defendant, Terrion Engram, was charged with attempted premeditated murder (Pen. Code, §§ 187, subd. (a) and 664) and first degree burglary (§ 459). The jury rejected the murder charge but found him guilty of burglary. Defendant asserts that the trial court failed properly to charge the jury on the elements of burglary and to define the offense he intended had he gained admission to the house. The People claim the failure to describe the crime had defendant been able to enter the house was harmless beyond a reasonable doubt because the jury must have concluded that defendant intended to attack his ex-girlfriend, Heidy Acosta (Acosta), whom he had earlier stabbed with a knife.
All further statutory references are to the Penal Code.
We find that the jury was not properly instructed as to the elements of burglary and remand the case for a new trial.
2. Facts
Defendant had been dating Acosta for almost a year when they broke up in 2005. Defendant went to her home in August 2005 to attempt to convince her to continue the relationship. She called another friend, who brought three of his friends, one of whom began fighting with defendant in the backyard of Acosta’s home. Acosta saw the fight from her house and went into the yard to stop it. While the two were fighting, defendant pulled a kitchen knife and the four boys retreated. Acosta ran back into the house when defendant pulled the knife. In the house her nine-year-old cousin noticed that she was bleeding from underneath her armpit, although he did not see defendant stab Acosta.
After Acosta went back into the house, she saw that defendant was trying to get into the house. Acosta had locked the door when she ran into the house. When defendant could not open the door, he pulled off the screen door in an effort to unlock the window.
After Acosta realized she was bleeding, one of the boys whom she had called to come to the house carried her to a neighbor’s home where she was taken by ambulance to the hospital. At the hospital the physician found she had been stabbed in the chest cavity and her lung had collapsed.
3. Burglary
The jury rejected the People’s charge of attempted murder but found defendant guilty of first degree burglary. (§ 459.)
Section 459 provides that “Every person who enters any house . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.” The trial court instructed the jury on the issue of burglary as follows:
“The defendant is charged in Count 2 with burglary. To prove that the defendant is guilty of the crime, the People must prove that:
“No. 1, the defendant entered an occupied dwelling house;
“And, 2, when he entered an occupied dwelling house, he intended to commit a felony.
“A burglary was committed if the defendant entered with the intent to commit a felony.
“The defendant does not need to have actually committed a felony as long as he entered with the intent to do so. The People do not have to prove that the defendant actually committed one or more felonies.
“Under the law of burglary, a person enters an occupied dwelling house if some part of his body or some object under his or her control penetrates the area inside the building’s outer boundary.
“An occupied dwelling house’s outer boundary includes the area inside a window screen.
“The People allege that the defendant intended to commit a felony. You may not find the defendant guilty of burglary unless you all agree that he intended to commit a felony at the time of the entry.”
The California Supreme Court has confirmed “that a window screen is part of a building’s outer boundary and, hence, that penetration into the area behind a window screen amounts to an entry of a building even when the window itself is closed and is not penetrated.” (People v. Valencia (2002) 28 Cal.4th 1, 15.)
A finding that the window screen is part of the building is not enough, however, to conclude that defendant was guilty of burglary. In People v. Hughes (2002) 27 Cal.4th 287, 348-349 (Hughes), the Supreme Court referred to People v. Failla (1966) 64 Cal.2d 560 (Failla), in which the court held “‘[W]here the evidence permits an inference that the defendant at the time of the entry intended to commit one or more felonies and also an inference that his intent was merely to commit one or more misdemeanors or acts not punishable as crimes, the court must define “felony” and must instruct the jury which acts, among those which the jury could infer the defendant intended to commit, amount to felonies. Failure to do so is error, for it allows the triers of fact to indulge in unguided speculation as to what kinds of criminal conduct are serious enough to warrant punishment as felonies and incorporation into the burglary statute.’” (Id. at p. 564.)
In an additional Supreme Court case, People v. Prettyman (1996) 14 Cal.4th 248, 268, the court confirmed the holding as follows: “in Failla . . . we held that when a defendant is charged with burglary, the trial court, on its own initiative, must give instructions to the jury identifying and defining the target offenses(s) that the defendant allegedly intended to commit upon entry into the building.” (Prettyman, supra, at p. 268, italics original.)
In this case the trial court’s instruction failed to comply with the above authorities. The trial court merely instructed the jury that the defendant did not have to actually commit a felony as “long as he entered with the intent to do so. The People do not have to prove that the defendant actually committed one or more felonies.” Further, the trial judge indicated in the discussion of jury instructions that “Well, it seems to me that the evidence would support inferentially that the defendant intended to commit some sort of assaultive behavior against Miss Acosta.” Further, the trial court suggested that the assaultive behavior “would be inferred circumstantially from the facts and circumstances that relate to the stabbing itself.”
The People’s attorney indicated that there was evidence that appellant intended to commit murder inside Acosta’s house saying: “With intent to commit a felony inside. He was trying to kill her. He was trying to stab her. He was trying to hurt her. He hadn’t finished the job. That is what he was doing. There was no other reason to go inside like that. [¶] It is just like a horror movie. He stabbed her, and now he is going after her more because she is still alive. He is going after her. That is the residential burglary.”
The People assert that the jury must have believed that defendant was trying to break into the house for some purpose other than to check Acosta’s well being. Instead, the People, argue that defendant was intent on continuing the attack. The People, relying upon Hughes, supra, 27 Cal.4th 287, argue that the jury “could have only have believed appellant broke into [Acosta’s] house to commit some sort of felonious assault.”
The People’s analysis, in reliance upon Hughes, is faulty. In Hughes, the jury was instructed that it could find defendant guilty of burglary “if it found that he entered into the victim’s apartment with the specific intent to commit (i) theft, or (ii) sodomy, or (iii) rape, ” although the court did not instruct on what were the elements of rape. (Hughes, supra, 27 Cal.4th at p. 348.) In this case the jury was merely instructed that a burglary was committed if the defendant entered with the intent to commit a felony and that the jury did not have to agree on which felony defendant intended to commit. The trial court did not instruct the jury what constituted a felony. The People’s position that “the jury could have only have believed appellant broke into [Acosta’s] house to commit some sort of felonious assault” failed to satisfy the requirements of Failla that requires the trial court to give instructions to “jury identifying and defining the target offense(s) that the defendant allegedly intended to commit upon entry into the building.” (People v. Prettyman, supra, 14 Cal.4th at p. 268.)
The trial court’s failure to instruct the jury as to which acts defendant could have intended to commit when he removed the window screen and whether they were felonies was error. The case is remanded for further proceedings.
4. Disposition
The judgment is reversed.
We concur: Hollenhorst, Acting P. J., Miller, J.