Opinion
F073952
09-18-2018
THE PEOPLE, Plaintiff and Respondent, v. ZACHARY LEE MOCK, Defendant and Appellant.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF162888A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge. Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant/appellant Zachary Lee Mock was charged with entering a locked vehicle with the intent to commit a felony (count 1; Pen. Code, § 460, subd. (b); see also § 459) and misdemeanor vandalism (count 2; § 594, subd. (b)(2)(A).) The information also alleged three prior prison term enhancements (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
A jury convicted defendant on both counts, and the court found the three prior prison term allegations true. On count 1, the court sentenced defendant to the upper term of three years, plus three years for the prior prison term enhancements. On count 2, the court sentenced defendant to 180 days in jail, stayed pursuant to section 654.
The first three years of this sentence were to be served in custody, while the remainder of his sentence would be served on mandatory supervision.
BACKGROUND
Renee Marines was working as a medical assistant at a clinic in January 2016. As she was going to test a urine sample in the procedure room, something outside the window caught her eye. Defendant rode up on a bicycle and parked it against a wall. He then walked in front of several vehicles before stopping next to Marines's vehicle, which had its doors locked and windows rolled up. Defendant then broke the passenger-side window. Marines opened a door and yelled out, "Hey." Marines then asked a coworker to call the police.
Marines's coworker, Nikhol West, described the incident as follows:
"I saw the person walking from my left-hand side, by one of the windows, came around to the other window, by my other window, went over to where the cars were. I saw, like, something in his hand or something raised. The window was hit and broken. And it kind of looked like he reached in. But I'm not 100 percent sure. I can't really say he did or he didn't. Just look like he kind of - well, I knew he broke it. I saw that. It kind of looked like he reached in. But it might have been, like, glass off or something. I'm not quite sure."
Francisco Gomez, who works as a safety technician, was parked outside of his client's office on January 7, 2016. Gomez saw a man riding his bicycle. Gomez thought nothing of it and began preparing for a meeting with his client. About 30 to 60 seconds later, Gomez heard a loud bang. Gomez saw that the man who had been on the bicycle was now hovering over the passenger door of a vehicle and was "grabbing some stuff." When asked to clarify what he meant by "grabbing some stuff," Gomez said: "Well, I didn't see exactly if he was grabbing, but kind of hovering over, kind of putting his hands in the passenger's side door."
A palm print from the top of the front passenger door did not match defendant's print.
Audio from a jailhouse phone call between defendant and his mother was played before the jury.
The parties stipulated that the court reporter need not transcribe the audio of the calls. We quote from the transcript of the call in the clerk's transcript.
"FEMALE: ... [Y]ou got arrested for doing stupid shit.
"MOCK: Yeah. [¶] ... [¶]
"FEMALE: -- you know you're-you're-you're not - this happened to me one time. Somebody busted out my window and stole the-a (unintelligible) out of my car when I was a[t] work. And I felt so violated. And you're doing the same kinda shit. This is not how I raised you. I used to always give you excuses ... but this - this now is - you're turning into a thug.
"MOCK: I don't -- I don't know what to do.
"FEMALE: And I-I - what do you mean you don't know what to do?
"MOCK: I don't have a job, I don't have anything. I don't know - I don't know what to do."
DISCUSSION
I. There was Substantial Evidence Supporting the Burglary Conviction
Defendant argues there was insufficient evidence he "entered" the vehicle. Specifically, defendant argues that "neither West nor Gomez described what they saw in a way that would support a finding that appellant was guilty of auto burglary beyond a reasonable doubt." Defendant is mistaken in several respects.
First, " ' "it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt." ' " (People v. Clark (2016) 63 Cal.4th 522, 625-626.) As a result, " '[w]e "must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]" [Citation.]' " (Id. at p. 625, italics added.) And " '[w]here the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal.' [Citation.]" (Id at p. 626.)
Second, given the standard of review described above, Gomez's testimony does "support" a finding defendant entered the vehicle. Gomez testified he saw defendant hovering over the passenger door of a vehicle and was "grabbing some stuff." When asked to clarify what he meant by "grabbing some stuff," Gomez said: "Well, I didn't see exactly if he was grabbing, but kind of hovering over, kind of putting his hands in the passenger's side door." (Italics added.) This testimony is awkwardly phrased - it is not entirely clear what putting hands "in" the passenger door means. However, we accept that one reasonable inference the jury could have drawn is that defendant put his hands through the door's plane into the vehicle. While other inferences can also be drawn from this testimony, that circumstance does not warrant reversal. " 'Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal.' [Citation.]" (People v. Clark, supra, 63 Cal.4th at p. 626.)
Gomez did not identify the man as defendant, but other evidence established the man Gomez saw breaking the window was defendant.
Because of this conclusion, we need not determine whether West's testimony would also have sufficed.
It is true that Gomez testified he did not see defendant grab anything in the vehicle. But burglary occurs upon entry with the intent to commit larceny or a felony (§ 459), regardless of whether any theft actually occurs after entry. (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042.)
II. The Court Erred in Failing to Instruct the Jury on Attempted Burglary
Defendant next claims the court erred in failing to instruct the jury on the lesser included offense of attempted automobile burglary. We agree.
A. Error
An instruction on a lesser included offense must be given if there is substantial evidence from which a jury could reasonably conclude that the defendant committed the lesser, uncharged offense, but not the greater, charged offense. (People v. Nelson (2016) 1 Cal.5th 513, 538.) Attempted burglary is a lesser-included offense of burglary. (See People v. Michaels (1961) 193 Cal.App.2d 194, 198.)
Applying the relevant standard to the facts of this case, we must ask: was substantial evidence from which a jury could reasonably conclude defendant committed an attempted burglary, but not a completed burglary? We answer this question affirmatively.
Marines testified defendant broke her window, and she yelled, "Hey." Marines did not testify defendant entered the vehicle.
West testified that she saw defendant break the window. West initially testified that it "looked like" he reached in the vehicle, but ultimately she "[couldn't] really say he did or he didn't" reach in. West testified Marines "immediately" opened the door and said, "Hey" to defendant.
Gomez testified defendant was "hovering" over the passenger door. Gomez "didn't see exactly if he was grabbing, but kind of hovering over, kind of putting his hands in the passenger's side door." Gomez testified that he heard some ladies screaming at the same time he saw defendant hovering over the passenger door.
First, as noted above, Gomez's testimony on the issue of entry was brief and awkwardly phrased. Moreover, the jury could have rejected Gomez's testimony that defendant had "kind of" put his hands "in" the passenger side door.
The Attorney General argues that even though defendant abandoned his enterprise before completing a theft, "it is unreasonable to believe that he abandoned it without reaching into the SUV." We disagree. It is entirely possible defendant broke the window with every intent of stealing something, but abandoned that goal (before reaching in) once he realized he had been discovered.
From this evidence, a reasonable jury instructed on attempted burglary could have concluded defendant approached Marines's vehicle with intent to commit larceny or another felony inside; broke the window in furtherance of that goal; and was at that point interrupted by Marines yelling at him before he was able to enter the vehicle.
As a result, the court should have instructed on attempted burglary.
B. Prejudice
"In a noncapital case, the error in failing to instruct on a lesser included offense is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818 ... which requires reversal of the conviction for the greater offense 'if, "after an examination of the entire cause, including the evidence" [citation], it appears "reasonably probable" the defendant would have obtained a more favorable outcome had the error not occurred.' [Citation.] Probability under Watson 'does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citation.]" (People v. Racy (2007) 148 Cal.App.4th 1327, 1335.)
The Attorney General argues any error was harmless because there does not appear to be any motive for the break-in other than theft. But that observation does nothing to distinguish burglary from attempted burglary. We agree that theft was defendant's apparent motive. But the intent to steal something can motivate attempted burglary just as much as completed burglary.
The Attorney General also notes that the defense did not put on much evidence at trial. We fail to see how this renders the instructional error harmless. So long as there is evidence supporting the lesser, uninstructed offense, the absence of other defense evidence is not material.
Finally, the Attorney General argues the record shows the jury deliberated only 47 minutes before convicting defendant. Again, we do not see how this shows harmlessness. The fact that the jury labored under incomplete instructions for a short period of time does not make the instructions any more complete than if the jury had deliberated under incomplete instructions for weeks.
Accordingly, we reverse the judgment as to defendant's burglary conviction and sentence. Defendant may be retried. (People v. Springfield (1993) 13 Cal.App.4th 1674, 1681.)
As a result, we do not reach defendant's argument concerning the applicability of Proposition 47 to that conviction and sentence. --------
DISPOSITION
Defendant's conviction and sentence on count 1 are reversed. The matter is remanded for resentencing.
Prior to resentencing, the People may elect within 60 days of the finality of this opinion to retry count 1. In all other respects, the judgment is affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.