Opinion
H047716
03-23-2021
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN MICHAEL TURNER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1907595)
Following a court trial, defendant Justin Michael Turner was convicted of misdemeanor attempted second degree burglary (Pen. Code, §§ 664, 460, subd. (b)) and was sentenced to 20 days in county jail. On appeal, Turner argues that the judgment must be reversed because the trial court failed to obtain defense counsel's express waiver of a jury trial. He also argues that insufficient evidence supports his conviction for attempted second degree burglary. We affirm the judgment.
Unspecified statutory references are to the Penal Code.
BACKGROUND
A. The Complaint
On April 16, 2019, Turner was charged by complaint with felony attempted second degree burglary (§§ 664, 460, subd. (b); count 1) and misdemeanor identity theft (§ 530.5, subd. (d); count 2).
B. The Court Trial
1. The Prosecution's Case
Nicholas Pizarro was the bar manager at O'Flaherty's Irish Pub, which was owned by the same owners as Five Points Bar. Pizarro had also worked at Five Points Bar when they needed help, and he knew that the bar was typically open between 5:00 p.m. and midnight on Sundays. There was a lockbox attached to a water pipe outside Five Points Bar. The lockbox usually contained a key to the bar.
Around noon on Sunday, March 10, 2019, Pizarro met some friends for lunch at Britannia Arms, which was located next door to Five Points Bar. When Pizarro walked to Britannia Arms that morning, he passed by Five Points Bar. At the time, Pizarro did not notice that the lockbox was open, and if he had seen that the lockbox was open, he would have closed it and called the bar's general manager.
Pizarro was standing outside Britannia Arms smoking a cigarette when he noticed Turner playing with Five Points Bar's lockbox in the reflection of a parked car. Pizarro had arrived at Britannia Arms shortly before he noticed Turner. Pizarro thought that Turner looked like he was trying to open the lockbox. Pizarro turned around and saw that Turner had taken the lockbox off the water pipe and had walked toward Five Points Bar's front door. Pizarro did not actually see Turner take the lockbox off the water pipe, and he could not see what was in Turner's hands. Pizarro was around six feet away from Five Points Bar's doorway, but he did not hear or see Turner knock on the door, yell, or wave to get anyone's attention. Turner stood in front of the bar for about a minute. He then walked back to the water pipe and put the lockbox back.
Pizarro decided to call the police. Afterwards, he went inside the bar and found out that a bar employee was already inside. The employee had the key that was supposed to be inside the lockbox.
Daithi Omaolmhichil owned Five Points Bar and was driving past the bar when he noticed that there were police outside the bar. Omaolmhichil stopped driving and went to see what was going on. He spoke with the police officers who were present and provided them with the bar's surveillance videos. Omaolmhichil did not see any damage to the bar's lockbox. Later, Omaolmhichil found one of the bar's employees asleep inside the bar. That employee had the key that was usually inside the lockbox.
The surveillance videos that were provided by Omaolmhichil were played for the trial court and admitted into evidence. In the videos, Turner can be seen holding the lockbox, which appeared to be open. Turner held the lockbox in one hand and a metal object in his other hand. Turner then stood in front of the bar for approximately a minute, pressing the buttons on the lockbox. The surveillance videos did not have sound.
On March 10, 2019, San Jose Police Department Officer Jordan Epperson was dispatched to the area around Five Points Bar following a report of a possible burglary in progress. Officer Epperson was told that the suspect was wearing a grey sweater, grey sweatpants, and a yellow backpack. After Officer Epperson arrived in the area, he saw Turner about a block away from the Five Points Bar. Turner was wearing items that matched the description of the burglary suspect. Officer Epperson stopped Turner and searched his backpack. Inside the backpack, Officer Epperson found two driver's licenses or identification cards, a passport, and four credit cards, none of which belonged to Turner. Officer Epperson could not recall finding any burglary tools. However, Turner's backpack contained two sets of keys on two key rings, including house keys and a handcuff key. Officer Epperson estimated that there were a total of 10 keys, and the keys could "open all sorts of different items."
2. The Defense Case
Turner testified on his own behalf. He was homeless and living in Guadalupe Park on March 10, 2019. That day, Turner was riding his scooter to get to the library when he passed Five Points Bar and noticed that the lockbox on the water pipe was open. There was no key inside of the lockbox. Turner found this unusual because when he "[r]egularly" passed by the area, the lockbox was closed.
Turner had previously returned glass cups to Five Points Bar, and he decided that he should be a "good Samaritan" and return the lockbox to the bar. Turner used a key and pushed the lever on the lockbox to unclip the lockbox's hinge so he could take it off the water pipe. Turner used the key because he could not get his finger between the hinge. Turner testified that he did not open the lockbox to retrieve the key. He entered a numeric code after he tried to return the lockbox, and he saw that the code was visible inside the lockbox once it was opened. Turner never entered Five Points Bar, and it was never his intent to try to break in or steal anything.
Turner stated that the surveillance video did not capture everything that had happened, and it was missing "a whole major segment." Turner insisted that the video did not show that he had knocked on the bar door, and that after he had knocked on the door, he had said out loud, " 'I don't know why I'm going to do this good deed. I'm going to put this back.' " He then put the lockbox back on the water pipe.
C. The Verdict and Sentencing
The trial court found Turner guilty of attempted second degree burglary (count 1), which it reduced to a misdemeanor under section 17, subdivision (b), and not guilty of identity theft (count 2). The trial court stated that it had viewed the bar's surveillance videos multiple times, and it had considered how Turner was "holding the lockbox, how he was maneuvering the lockbox, and also, when I saw the thin metal thing that he was using on the lockbox."
The trial court imposed a sentence of 20 days in county jail and granted custody credits of 10 actual days and 10 days of conduct credit.
DISCUSSION
A. The Jury Trial Waiver
Turner argues that the judgment must be reversed because the trial court failed to obtain defense counsel's express waiver of the right to a jury trial. The Attorney General contends that defense counsel's waiver can be inferred from his conduct at the hearing.
1. Background
At the December 2, 2019 hearing, the trial court advised Turner of his right to a jury trial. Afterwards, the trial court asked Turner, "So at this time are you willing to give up your right to a trial by jury?" Turner responded, "Yes, I believe that is what we discussed." Defense counsel did not object to the waiver. Following Turner's waiver, the trial court stated, "And I think your attorney—" Defense counsel responded, "Your Honor, can we approach on one thing? Because I know the Court is leaving for an extended period of time and I want to talk to the Court about it." The trial court had an unreported sidebar conference with defense counsel. Afterwards, the trial court had on-the-record discussions with defense counsel and the prosecutor about various subjects. Defense counsel made no further comments about the jury trial waiver, and the matter subsequently proceeded by a court trial.
2. General Legal Principles
Article I, section 16 of the California Constitution provides in pertinent part: "A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel."
A defendant's waiver of the right to a jury trial "must be so expressed [in words] and will not be implied from [his or her] conduct." (People v. Holmes (1960) 54 Cal.2d 442, 444 (Holmes).) However, case law has established that "where an express waiver has been received from the defendant, the acquiescence of defense counsel and the prosecutor will be given effect as implied waivers." (People v. Evanson (1968) 265 Cal.App.2d 698, 701 (Evanson); see People v. Brooks (1957) 154 Cal.App.2d 631, 634 (Brooks); People v. Robison (1961) 193 Cal.App.2d 410, 413; Campbell v. Municipal Court of Los Angeles Judicial Dist. (1960) 183 Cal.App.2d 790, 794; People v. Marshall (1960) 184 Cal.App.2d 535, 538; People v. Noland (1939) 30 Cal.App.2d 386, 388-389.)
"[T]he denial of the right to a jury trial constitutes a ' "structural defect[]" in the judicial proceedings' that, by its nature, results in . . . a 'miscarriage of justice.' " (People v. Ernst (1994) 8 Cal.4th 441, 449 (Ernst), abrogated on a different point as stated in People v. French (2008) 43 Cal.4th 36, 52, fn. 8.) As a result, a judgment must be reversed if a defendant's guilt "was determined by a court trial without there having been an express waiver by defendant of his right to a jury trial." (Ernst, supra, at p. 449.)
3. Analysis
There is no dispute that Turner expressly waived his right to a jury trial. Defense counsel did not make an express waiver, but he did not object to Turner's waiver and continued to represent him when the matter proceeded by court trial. We find that defense counsel's conduct constituted an implied waiver of the right to a jury trial.
In Evanson, supra, 265 Cal.App.2d 698, defense counsel stated that his client " 'desire[d] to proceed without the necessity of a jury.' " (Id. at p. 700.) The trial court asked the defendant if that was " 'agreeable,' " and the defendant answered yes. (Ibid.) Defense counsel made no express statement waiving the right to a jury trial on the record. (Ibid.) However, the Evanson court concluded that defense counsel's waiver of the right to a jury trial was implied from his acquiescence during the hearing. (Id. at p. 701.)
In Brooks, supra, 154 Cal.App.2d 631, defense counsel stated that " '[t]he defendant desires to waive his right to trial by jury,' " and the defendant thereafter expressly waived his right to a jury trial. (Id. at p. 634.) Brooks concluded that "if the defendant unequivocally expresses his waiver of a jury trial in the presence of his counsel and his counsel thereafter continues to represent him throughout the trial without indicating an objection, then his counsel has in effect joined in the waiver." (Ibid.)
Like in Evanson and Brooks, defense counsel remained silent and acquiesced to the proceedings after Turner made his express waiver. (Evanson, supra, 265 Cal.App.2d at p. 701; Brooks, supra, 154 Cal.App.2d at p. 634.) This is not a situation where defense counsel objected to Turner's waiver or stated that Turner's waiver was made against his advice. (See, e.g., People v. Peace (1980) 107 Cal.App.3d 996, 1008 [finding no implied waiver where defense counsel stated that the defendant's waiver was against counsel's advice].) Turner argues that Evanson and Brooks are distinguishable because in those cases, defense counsel informed the trial court that the defendants wanted to waive jury trial. (Evanson, supra, at p. 700; Brooks, supra, at p. 634.) Here, defense counsel did not inform the trial court that Turner wanted to waive jury trial, but he effectively joined Turner's waiver when he made no comments or objections to Turner's waiver and continued to represent Turner throughout the court trial without an objection. (Brooks, supra, at p. 634.) Although defense counsel did not inform the trial court that Turner wanted to waive his right to a jury trial, his conduct still amounted to an implied waiver. (See Evanson, supra, at p. 701; Brooks, supra, at p. 634.)
Turner relies on several California Supreme Court cases and argues that defense counsel's waiver must be expressed in words and cannot be implied. However, the cases that he relies upon are all distinguishable because only the lack of an express waiver by the defendant was at issue.
In Ernst, supra, 8 Cal.4th 441, the California Supreme Court stated that article I, section 16 of the California Constitution provides that in a criminal case, waiver of the right to a jury trial must be " 'expressed in open court by the defendant and the defendant's counsel.' " (Ernst, supra, at p. 448.) Ernst, however, found that failure to obtain an express waiver from the defendant, not defense counsel, required reversal of the judgment. (Id. at pp. 448-449.)
In Holmes, supra, 54 Cal.2d 442, the California Supreme Court reversed the judgment after finding that the defendant did not expressly waive his right to a jury trial. (Id. at p. 443.) Holmes held that a defendant's waiver "must be so expressed and will not be implied from a defendant's conduct." (Id. at p. 444.)
Ernst and Holmes are distinguishable because here Turner did expressly waive his right to a jury trial. Moreover, nothing in Ernst or Holmes suggests that those cases disapproved or overruled the cases cited above that dealt with the failure to obtain counsel's express consent on the record. "It is axiomatic that cases are not authority for propositions not considered." (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.)
Finally, in People v. Vera (1997) 15 Cal.4th 269, the defendant did not personally waive his right to a jury trial on his prior prison term allegations. (Id. at p. 273.) The Vera court reviewed article I, section 16 of the California Constitution, and observed: "The requirement that a defendant and defense counsel personally and expressly waive the right to jury trial describes the manner in which a criminal defendant who wishes to waive this 'inviolate' right may do so, and constitutes the only method by which the constitutional right to jury trial may be waived in a criminal case." (Vera, supra, at p. 278.) Turner acknowledges that this statement was merely dicta because Vera involved the right to a jury on a trial concerning prior convictions. Since this statement was dicta, and since the line of cases discussed above has not been overruled or disapproved by the California Supreme Court, we are convinced that the above language in Vera did not affect the settled state of the law on this issue.
Accordingly, we find that defense counsel's conduct had the effect of an implied waiver to a right to a jury trial, and reversal of the judgment is not required.
B. Sufficiency of the Evidence to Support the Attempted Burglary Conviction
Next, Turner argues that his conviction of attempted second degree burglary must be reversed because there was insufficient evidence that he had the intent to enter Five Points Bar to commit a theft or other felony.
1. General Legal Principles
Burglary "requires an entry into a specified structure with the intent to commit theft or any felony." (People v. Tafoya (2007) 42 Cal.4th 147, 170; § 459.) " ' "While the existence of the specific intent charged at the time of entering a building is necessary to constitute burglary in order to sustain a conviction, this element is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence." ' " (People v. Holt (1997) 15 Cal.4th 619, 679 (Holt).) First degree burglary requires entry into a structure currently being used for dwelling purposes. (People v. Sample (2011) 200 Cal.App.4th 1253, 1261; § 460, subd. (a).) All other burglaries are second degree burglaries. (§ 460, subd. (b).)
In general, an attempt to commit a crime is itself a crime. (§ 664.) " '[A]n attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.' " (People v. Toledo (2001) 26 Cal.4th 221, 229.)
In determining a sufficiency of the evidence claim, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60.)
2. Analysis
Turner argues that the evidence shows only that he held the lockbox and stood in front of Five Points Bar before replacing the lockbox and walking away. Turner also argues that there was evidence that he was trying to be helpful and return the empty lockbox because he testified that he had previously returned drinking cups to Five Points Bar and that the lockbox was already open when he came across it.
Turner's argument ignores the evidence that is not favorable to his position. The trial court was not required to believe Turner's testimony, and as the reviewing court, we do not reevaluate a witness's credibility. (People v. Albillar, supra, 51 Cal.4th at p. 60.) The trial court could have reasonably discredited Turner's testimony that he intended to return the empty lockbox to Five Points Bar. Turner himself testified that it was not easy to take the lockbox off the water pipe—he needed to slide a metal key under the hinge. If Turner's intent was simply to inform the bar owners that the lockbox was open, he had no reason to take the lockbox off the water pipe. He could have knocked on the door and alerted employees that the lockbox was open.
Turner's testimony was also directly contradicted by Pizarro's recollection of the events. Pizarro testified that he passed by the bar in the morning, and he would have noticed if the lockbox was open. According to Pizarro, he arrived at Britannia Arms shortly before he noticed Turner. Pizarro also testified that he saw Turner playing with the lockbox, and he thought Turner was trying to open it. According to Pizzaro, he was standing several feet away from Five Points Bar when Turner approached the bar's front door, and he did not hear Turner knock on the door or call out to anyone inside the bar.
Viewing the evidence in the light most favorable to the judgment, the trial court could reasonably conclude that Turner opened the lockbox and attempted to unlawfully enter the closed bar using the lockbox. Based on the witnesses' testimonies, the specific intent for burglary can " ' "be inferred from all of the facts and circumstances disclosed by the evidence." ' " (Holt, supra, 15 Cal.4th at p. 669.) The surreptitious nature of Turner's attempt suggests that he had an illicit purpose. Appellate courts have held that " '[b]urglarious intent can reasonably be inferred from an unlawful entry alone.' " (People v. Martin (1969) 275 Cal.App.2d 334, 339; People v. Michaels (1961) 193 Cal.App.2d 194, 199 ["[b]urglarious intent could be reasonably and justifiably inferred from the unlawful and forcible entry alone"].) It was reasonable in this case to infer that Turner opened the lockbox because Pizarro testified that he would have noticed if it were open when he passed by in the morning. It was undisputed that Turner used a metal key or object to take the lockbox off the water pipe, and Turner subsequently approached the bar when it was closed. There was evidence that Turner did not alert anyone to his presence, and his explanation that he wanted to return the open lockbox was not reasonable. Pizarro testified that Turner stood in front of the bar for about a minute, and Turner offered no reasonable explanation for why he silently stood in front of the bar's door for an extended period of time.
When the trial court reached its verdict, it stated that it had considered the surveillance video, which it had viewed multiple times. Turner, however, did not request that the surveillance video be transmitted to this court for our consideration as required by California Rules of Court, rules 8.320 and 8.224. Rule 8.320(e) states: "Exhibits admitted in evidence . . . are deemed part of the record, but may be transmitted to the reviewing court only as provided in rule 8.224." Rule 8.224(a)(1) states: "[A] party wanting the reviewing court to consider any original exhibits that were admitted in evidence . . . but that were not copied in the clerk's transcript under rule 8.122 or the appendix under rule 8.124 must serve and file a notice in superior court designating such exhibits." As the appellant, it is Turner's burden to present a record adequate for review and to demonstrate error. (People v. Whalen (2013) 56 Cal.4th 1, 85, disapproved of on a different point as stated in People v. Romero and Self (2015) 62 Cal.4th 1, 44.) Regardless, we find that the testimony presented at Turner's trial was sufficient evidence to support his conviction of attempted second degree burglary.
Furthermore, even if we assume that the evidence cited by Turner could support a finding that he did not intend to enter Five Points Bar for the purposes of committing a theft or felony, the existence of such an alternative conclusion does not require reversal on appeal. " 'Although it is the duty of the [trial court] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trial court], not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment.' " (People v. Thomas (1992) 2 Cal.4th 489, 514.) As explained above, the circumstances surrounding Turner's attempt to enter Five Points Bar reasonably supports the trial court's determination that he had the intent to commit a theft or other felony. Accordingly, Turner's conviction of attempted second degree burglary is supported by sufficient evidence.
DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
DANNER, J.