Opinion
F071749
01-30-2017
THE PEOPLE, Plaintiff and Respondent, v. NATHAN CHARLES AGUIRRE, Defendant and Appellant.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and F. Matt Chen, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Stanislaus Super. Ct. No. 1476757)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Dawna Reeves, Judge. Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
A jury convicted appellant Nathan Charles Aguirre of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)) and found true an allegation that someone was present in the residence when the burglary occurred (§ 667.5, subd. (c)(21)). In a separate proceeding the court found true a prior prison term enhancement (§ 667.5, subd. (b)), a serious felony enhancement (§ 667, subd. (a)) and allegations that Aguirre had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)).
All statutory references are to the Penal Code. --------
On June 2, 2015, the court sentenced Aguirre to an aggregate 13-year prison term, a doubled middle term of eight years, a five-year serious felony enhancement and a stayed one-year prior prison term enhancement.
On appeal, Aguirre contends the court committed instructional error. We affirm.
FACTS
The Prosecution Case
On July 26, 2014, at approximately 3:00 a.m., Darlyne Talley was asleep on a couch in the living room of her apartment in Modesto when she awoke to find Aguirre standing in the dining area fumbling through some items on a table. Talley did not know Aguirre and asked who he was. Aguirre replied, "Anthony." Talley said she did not know an "Anthony" and Aguirre replied that he was "Cynthia's boyfriend." Talley said she did not know a "Cynthia." Thinking Aguirre might be a friend of her niece Ashley Owens, who was sleeping in a bedroom, Talley asked for Owens. Aguirre replied, "They will be back in a little while." After Talley told him to leave, Aguirre picked up several items, including a towel, Owens's purse, and a sweater, and walked out the back door. Talley called 911.
Shortly after 3:24 a.m., Modesto Police Officer Evan Swearingen contacted Aguirre in a room at the Tiki Lodge, which was located behind Talley's apartment. Officer Bradley Beavers also responded to the scene and found Owens's purse on a bed in the motel room, wrapped in a black sweater. Officer Swearingen testified Aguirre was calm, cooperative, cognizant, and responsive to what the officer told him. Officer Beavers testified Aguirre was calm, nonchalant, and responsive when asked questions.
Officer Benjamin Brandvold took Talley to where Aguirre was being detained and she identified Aguirre as the man who had been in her apartment. During subsequent questioning by Officer Brandvold, Aguirre stated that he had been looking for his girlfriend. When asked where he got the purse and other items found in his motel room, Aguirre told the officer that "the old lady laying on the couch" (Talley) let him in. He then stated that Talley told him to, "come in" and that he had permission from his "friend" Owens to enter the apartment. During further questioning, Aguirre stated that Talley opened the door to let him in and that she told him to take the purse to Owens. However, when Officer Brandvold asked why he took the purse out of the apartment since Owens was inside, Aguirre replied that he was "under the impression that that was not [Owens inside the apartment]."
During the interview Aguirre also stated that he had snorted methamphetamine a few hours earlier. However, Officer Brandvold testified that although Aguirre was under the influence of methamphetamine during the interview, he was "on the more coherent side, [and] able to converse" with the officers.
The Defense
Cynthia Ruvalcaba, Aguirre's girlfriend, testified that Aguirre used methamphetamine by snorting, smoking, or injecting it and that when he injected it, he became delusional and thought everything was a conspiracy.
Aguirre testified that 9 to 10 days prior to the night he entered Talley's apartment, he and Ruvalcaba fought and she left. On July 25, 2014, he was feeling despondent over Ruvalcaba's absence and sometime after nightfall he injected two grams of methamphetamine, which he considered an extreme amount. Afterwards, he could not "think right," he became paranoid that Ruvalcaba was going to leave him, and he went to look for her. Aguirre went to Talley's apartment because on a previous night, after using drugs, he thought he had seen her there. He walked in through the back door because it was wide open and to see if Ruvalcaba or her things were there. Inside he saw several items that he thought belonged to Ruvalcaba and he took a purse and a sweater. Talley woke up and Aguirre told her his name was Anthony because everybody called him by that name. When Talley asked for Owens, Aguirre told her Owens and Ruvalcaba had left, that he did not know where, but that they would be back soon. Aguirre told Talley he was going to the store and asked if there was anything he could get for her. Talley declined his offer and told him to leave and close the door behind him. Aguirre left with the items he picked up and took them to his motel room because he felt Ruvalcaba would have to go there to get them from him.
During cross-examination, Aguirre testified that when he used methamphetamine he usually went to look for Ruvalcaba. He also looked for anything that reminded him of her and he usually took those items. Aguirre was impeached with a prior robbery conviction.
DISCUSSION
The information alleged that on July 26, 2014, Aguirre, "did willfully, unlawfully, and feloniously enter [Talley's residence] with the intent ... to commit a theft or any other felony offense." During the trial, defense counsel argued that based on the wording of the information, trespass was a lesser included offense of the burglary offense charged in the information and he requested that the jury be instructed on trespass. The court denied the request. On appeal, Aguirre renews his contention that based on the language of the information, trespass was a lesser included offense of the burglary charged in that document. Thus, according to Aguirre, the court prejudicially erred when it denied his request for an instruction on trespass as a lesser included offense of burglary. We disagree.
"Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117-118 (Birks).)
Residential burglary is the entry of a dwelling or house with the intent to commit a felony. (§§ 459, 460, subd. (a).) Criminal trespass, also known as "unauthorized entry," is the entry of a residence without the owner's consent. (See § 602.5, subds. (a) & (b).) A lack of consent to the entry, thus, is an element of trespass but not of burglary. (People v. Sherow (2011) 196 Cal.App.4th 1296 [lack of consent is not element of burglary]; accord People v. Sigur (2015) 238 Cal.App.4th 656 [lack of consent is not element of burglary].) Accordingly, it is settled that trespass is not a lesser included offense of burglary under the elements test because burglary may be committed by a person who has permission to enter a dwelling, so long as the person had, at the time of entry, an intent to commit a felony. (People v. Lohbauer (1981) 29 Cal.3d 364, 369.) Aguirre, however, contends the accusatory pleading test is satisfied. Under the accusatory pleading test, we consider whether the "accusatory pleading describes the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime." (People v. Moon (2005) 37 Cal.4th 1, 25-26.) Aguirre asserts that as alleged in the information, a "willful[], unlawful[], and felonious[]" entry into Talley's home was an element of the charged burglary offense and that the nonconsensual entry required for trespass was necessarily included in this element.
In a burglary, however, the entry is unlawful because it is committed with the intent to commit a felony. The information alleged Aguirre "unlawfully" entered Talley's home "with the intent ... to commit a theft or any other felony offense." It did not allege that Aguirre "unlawfully" entered the home "without the owner's consent." Under the facts alleged in the information, it was Aguirre's intent to steal that made his entry unlawful, not the owner's lack of consent. Accordingly, the information did not allege a trespass under the accusatory pleading test, and the trial court was not required to instruct on trespass as a lesser-included offense of burglary.
Our Supreme Court came to the same conclusion in Birks, where the burglary allegations (that the defendant " 'did willfully and unlawfully enter a commercial building ... with intent to commit larceny and any felony' ") mirrored the allegations in the instant matter. (Birks, supra, 19 Cal.4th at p. 118, fn. 8.) Birks explained, "[i]t appears well settled that trespass is not a lesser necessarily included offense of burglary, because burglary, the entry of specified places with intent to steal or commit a felony (§ 459), can be perpetrated without committing any form of criminal trespass (see § 602)." (Ibid.) The Supreme Court reiterated this conclusion in People v. Taylor (2010) 48 Cal.4th 574, 622, and People v. Foster (2010) 50 Cal.4th 1301, 1343-1344, explaining that trespass is a lesser related offense, not a lesser included offense, of burglary.
Nevertheless, even if we viewed the description of the requisite entry—"willfully, unlawfully, and feloniously"—as an element of burglary, as Aguirre posits, we would reject Aguirre's contention. By requiring that the entry be "felonious," the language of the information excluded the unauthorized entry into a residence as a lesser included offense because that offense involves only misdemeanor conduct. (§ 602.5, subds. (a) & (b); § 17.)
Under Birks, a trial court cannot instruct a jury on such related, but not necessarily included, offenses without the prosecutor's agreement. (Birks, supra, 19 Cal.4th at p. 136.) Here, the prosecutor did not support the defense's request for a trespass instruction. Accordingly, the trial court did not err in refusing to give the instruction.
In any event, the failure to instruct on a lesser included offense is not reversible unless it is reasonably probable the defendant would have received a more favorable result absent the error. (People v. Breverman (1998) 19 Cal.4th 142, 177-178.) Aguirre was impeached with a prior robbery conviction. His statement to Officer Brandvold shortly after he was identified by Talley contradicted his testimony and refuted his contention that he trespassed when he entered her apartment. Aguirre's testimony that he did not enter Talley's apartment with intent to steal because he was delusional as a result of injecting an excessive amount of methamphetamine was contradicted by the observations of two officers who did not observe him to be delusional. He was also lucid and did not appear to have any trouble conversing or understanding and answering questions when he was interviewed by Officer Brandvold and while speaking with Talley. Thus, we further conclude Aguirre was not prejudiced by the failure to instruct on trespass as a lesser included offense of burglary because it is unlikely such an instruction would have resulted in a more favorable outcome for Aguirre.
DISPOSITION
The judgment is affirmed.