Opinion
A143890
12-29-2017
THE PEOPLE, Plaintiff and Respondent, v. GENE AUBUCHON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 City and County Super. Ct. No. SCN222105)
Defendant Gene Aubuchon was convicted by a jury of first degree burglary. At trial, Aubuchon admitted he entered the victim's home but claimed to have done so at the invitation of a person he assumed was the owner of the home. After realizing this person was not the owner, and while already inside the victim's garage, Aubuchon decided to steal the victim's purse and other belongings. He then entered the foyer of her home, in possession of her things, but did so in order to leave the home and not to steal anything else. His counsel argued he did not commit a burglary because the evidence showed he neither entered the home, nor any room in it, with the intent to commit theft.
On appeal, Aubuchon challenges his burglary conviction, claiming the trial court erred in responding to a question posed by the jury during deliberations concerning the intent element of burglary. He contends the court should have given his proposed pinpoint instruction to the jury that his entry into the foyer from the garage in order to leave the home did not constitute a new crime, because he lacked the intent to steal additional items when he entered the foyer and because the foyer was not a "room" within the meaning of the burglary statute. He also argues that in any event, the court should have provided additional instructions to the jury. We disagree and affirm.
BACKGROUND
I.
The Charges and the Evidence
The information charged Aubuchon with first degree burglary (Pen. Code, § 459), felony receipt of stolen property (§ 496, subd. (a)), misdemeanor resisting a police officer (§ 148, subd. (a)(1)) and misdemeanor giving false information to a police officer. (§ 148.9, subd. (a).) After a trial, the jury convicted him of the first three counts and acquitted him of the fourth. On appeal, he challenges only the burglary conviction.
Further references to statutory sections are to the Penal Code.
As relevant to the burglary conviction, the following facts were established at trial. In March 2014, Kathy Lavicka lived at a condominium on Hermann Street in San Francisco. On March 8, before 8:00 a.m., she was home, and her sister, niece and nephew were with her. At about 8:00 a.m., Lavicka's sister left the residence to take the dog to doggy day care.
Lavicka's home had three levels. On the first level were a garage, laundry room and deck and on the second were a kitchen, living area, bedroom and bathroom. Looking into the entranceway or "foyer" of her home on the first level, her garage was on the right behind a door and a rack was on the wall to the left. Prior to the intrusion, her car and scooter keys had been on a hook inside the garage. Her purse and backpacks had been on the rack in the foyer.
Aubuchon uses the term "foyer" throughout his briefs, and we shall do the same.
Lavicka testified that at about 8:15 a.m., she was at the top of the stairs leading down from the second level to the entranceway, garage and street when she heard her garage door. The sound indicated someone was trying to open the door but was prevented from doing so by a latch. She assumed it was her sister coming back and went down to the first level to find out what was going on.
Lavicka went downstairs to the landing and looked into the garage, where she kept her car and scooter. She saw an intruder holding her leather purse and two backpacks in his arms. He was about one or two feet away from her. She had last seen the purse and backpacks hanging on a wooden rack at the bottom of the stairs by the entrance to her home. The intruder had a "hoody" on and was covering his head and face with it. She did not see anyone else on the first level. Realizing the intruder was not her sister, she screamed at him to get out of her house. He backed out of the garage into the foyer at the bottom of the stairs and exited through the partially open front door.
Lavicka yelled at the man, "Give me back my stuff," and took off after him. She ran after him, screaming "I want my purse." He started to drop things, first dropping the backpack, then a set of keys to her car and then the purse. As she stopped to gather these things, a bystander brought the third bag back. A short time later, after the police were notified and detained Aubuchon, Lavicka identified him as the intruder. The police recovered her keys to her scooters, her sister's apartment and her house.
Other testimony indicated that Aubuchon, when detained by police on the street near Lavicka's home, gave police a false name (Robbie Tate) and had identification in his wallet bearing that name. Later, he disclosed his real name to police.
Donna Hood, a neighbor of Lavicka's, testified that on March 8, 2014, about 7:45 a.m. she saw a person at the bus shelter across the street from her home and took a photo, that about ten minutes later she saw three people at the bus shelter and took a photo of them, and that at about 8:15 a.m. she saw the same three people at the bus shelter "bagging up some stuff and looked like they were getting ready to leave," but that the woman and one man stayed. Hood saw the other man, who she identified as Aubuchon, put on his jacket, take a bandana out of his back pocket and tie it around his face covering his nose but then pull it down around his neck, put on a cap, and walk across the street toward her housing complex. He walked across alone; the other two remained at the bus shelter. The man who stayed at the bus shelter was African-American. About three minutes later, she heard Lavicka screaming and saw her running down the street in pursuit of Aubuchon. The woman and the African-American man were still at the bus shelter. Hood never saw the African-American man leave the bus stop.
Aubuchon testified in his own defense. He testified that at 8:00 in the morning on March 8, 2014, he was with his girlfriend sitting at the Fillmore and Hermann bus stop, charging his cell phone and organizing his backpack and things. A short time later, a man who was six feet tall and wearing a green jacket, khakis, and a brown shirt approached him from behind, began talking to him in a friendly way and left after about ten minutes. Aubuchon continued organizing his things, and the man came out of 283 Hermann and waved Aubuchon across the street, saying, "Hey, could you come here and help me." Aubuchon told his girlfriend he'd be back and went across the street to see what the man wanted. Aubuchon did so because he was "poor," did not have much money or a job, and figured that the man might pay Aubuchon for his help.
The man opened the door and told him to come inside the home, go into the garage and open the garage door by hitting the button on the door. Aubuchon followed his instructions, entered the house, and went from the foyer into the garage to open the garage door. The man handed Aubuchon bags that came from a rack on the opposite side of the foyer wall, which made Aubuchon suspicious. The man also handed Aubuchon a handbag, a backpack and some keys, and then immediately exited, telling Aubuchon to try the button again. Aubuchon, although suspicious that this might not be the man's house, did not drop the bags because he was already holding them and thought he would take them and see what he could get out of them, since he was "in that deep." He hit the garage door button again, but it did not move. He thought the keys the man had handed him might be for the car in the garage, but he did not plan to take the car.
At that point, someone from upstairs yelled, "Hey," and Aubuchon "kind of freaked out and ran" outside the door and down the street and onto a side street. He dropped the bags at the corner because he was scared" and continued on to a park, but was quickly detained by police.
On cross-examination, Aubuchon admitted he had been convicted of crimes or moral turpitude on three occasions. He said when he entered 283 Hermann Street, his intent was to help a guy move stuff out of his house. After he heard somebody upstairs yell "hey," he understood it was not the man's house and that the man intended to steal things there. He did not leave the bags where they were or put them down in the garage; he just ran. He did not really think, but just ran out, scared. He ran from the garage into the foyer and out the front door so he could get away with the property he decided to steal. He could not get out through the garage door and had to go back the way he came. He ran because he realized he "wasn't in the guy's house and it was somebody else's house." He had decided to steal the bags when the guy was leaving and when he (Aubuchon) ran. When he was running, he saw other people pointing at him and heard shouting. He never told any of the officers that his name was "Robbie Tate." None of the officers, paramedics or people at the hospital asked his name. Based on the identification they took from his wallet, they called him Robbie Tate, and he didn't correct them until they were at the hospital.
Aubuchon further testified that while he was at the bus stop earlier in the morning, he did not see a woman exit the house at 283 Hermann with a dog. He had never before met the African-American man who approached him at the bus stop. He did not know the man's name and did not recall if the man introduced himself. While he was inside the home at 283 Hermann, he was "halfway" or "kind of" but "not really" on the lookout for things to possibly steal. It crossed his mind, but he did not try to steal things on a regular basis and did not go out looking to commit crimes.
The first time he decided he was going to take the things that had been handed to him was when he was in the garage right after the man told him to hit the button a second time and walked out the door.
The defense also presented the videotaped testimony of Krzysztof Mokszan. Mokszan testified that on March 8, 2014, around 8:19 a.m. he was walking along Hermann Street near the intersection of Fillmore. He saw an African-American man who was more than six feet tall on the sidewalk ahead of him, next to the door of a house. On cross-examination, Mokszan testified that the first thing that caught his attention was the noise from a garage door, that he heard the noise twice, that he did not remember if he saw the man or heard the noise first, that he thought he saw the man before he heard the garage door noise the second time, that the man was further from the house and closer to a nearby bus stop than Mokszan, that he did not see the man touch the house or garage door, that he then saw a person run out the front door of the house that was by the garage door and run away from the house, that the person running was not the African-American man and was short and didn't weigh much, that the African-American man did not run away but later moved to the other side of the street to another bus stop, that this man was still at that bus stop 15 minutes later when Mokszan was walking back from the grocery store, that he never saw the African-American man enter or come out of any house or garage, and that the African-American man was a couple of feet down the street from the garage door.
II.
The Jury Instructions , Deliberations and Verdict
After a two and one-half days of testimony and arguments, the jury was instructed and commenced deliberations. As relevant here, the jury was instructed on both burglary and theft.
The burglary instruction, based on CALCRIM 1700, stated in relevant part that Aubuchon was charged with burglary in violation of section 459, and that to prove he was guilty of that crime the People "must prove that: [¶] 1. The defendant entered a building/room within a building [¶] AND [¶] 2. When he entered the building/room within the building he intended to commit theft." It directed the jury to the separate instructions on theft and further stated, "A burglary was committed if the defendant entered with the intent to commit theft. The defendant does not need to have actually committed theft as long as he entered with the intent to do so. The People do not have to prove that the defendant actually committed theft." The instruction ended by stating, "The People allege that the defendant intended to commit theft. You may not find the defendant guilty of burglary unless you all agree that he intended to commit theft at the time of the entry."
The court also instructed the jury under CALCRIM No. 1701 on degrees of burglary, and specifically that first degree burglary is the burglary of an inhabited house or a room within an inhabited part of a building, that a house or part of a building is inhabited if it is being used as a dwelling and that a house includes any garage that is attached to the house and functionally connected with it. Defendant does not contend Lavicka's home was not inhabited within the meaning of that instruction or that the instruction was insufficient in any way, and thus concedes that if the jury was otherwise properly instructed, the burglary was burglary in the first degree.
The theft instruction, based on CALCRIM 1800, defined theft by larceny as consisting of the following: "1. The defendant took possession of property owned by someone else; [¶] 2. The defendant took the property without the owner's [or owner's agent's] consent; [¶] 3. When the defendant took the property (he/she) intended (to deprive the owner of it permanently/[or] to remove it from the owner's [or owner's agent's] possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property; [¶] AND [¶] 4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief."
During the first afternoon of deliberations, the jury sent two sets of written questions to the court and requested a read back of the prosecution's cross-examination of Aubuchon. The next morning the jury sent a third written question to the court. Only the second and third questions are pertinent to this appeal.
The jury's second question was in two parts: "If a defendant is already in a building, and then develops an intent to commit theft, and then crosses a threshold from one room to another within the building, is that 'entering into a room within a building with intent to commit theft,' in violation of § 459?" "Or does the intent have to be present only at the point the defendant crosses from outside to inside?" After submitting this question, the jury recessed for the day. The following morning, after conferring with counsel, the court responded "yes" to the first part of the question, and "see above" to the second.
Later that morning, the jury asked its third question: "If a defendant is in a room, and has the intent to commit theft of property he has, and then the defendant crosses into another room, but only to exit (ie, he doesn't cross into room #2 to take more things in room #2), is that the requisite intent to commit theft in violation of § 459?" After conferring with counsel, the court responded to the question by directing the jury to review its jury instructions on burglary and theft.
These conferences were not recorded, but according to a settled statement, defense counsel argued to the court that the previous jury instructions were inadequate and should be clarified. "[Defense counsel] remembers asking the court to instruct the jury that once Mr. Aubuchon had taken possession of Ms. Lavicka's purse in her garage, his going into the foyer for the purpose of exiting the premises did not constitute a new crime." The deputy district attorney "remembers [defense counsel] objecting to the court simply repeating its previous instructions and arguing the jury should receive additional instruction."
On the afternoon of August 21, about an hour after resuming deliberations having received the response to the last question, the jury returned a verdict. It found Aubuchon guilty of first degree burglary, receiving stolen property, and obstructing a police officer, and not guilty of giving false information to a police officer.
DISCUSSION
Aubuchon claims the trial court erred in two respects in responding to the jury's third question, which asked whether a defendant who first decides to commit theft of property he already possesses while in the room of a home, and who then crosses into another room of the home solely in order to leave without taking anything additional, has the requisite intent to commit burglary in violation of section 459. Aubuchon contends the court should have given the pinpoint instruction his counsel requested and in any event should have supplemented its previous instructions. We address each of these arguments in turn.
I.
The Court Did Not Err in Rejecting Aubuchon's Proposed Pinpoint Instruction.
Aubuchon first asserts the trial court should have given his proposed pinpoint instruction that " 'once Mr. Aubuchon had taken possession of Ms. Lavicka's purse in her garage, his going into the foyer for the purpose of exiting the premises did not constitute a new crime.' " He argues this pinpoint instruction was an accurate statement of the law, and was necessary because his re-entry into the foyer of the victim's home from the garage in order to leave could not constitute burglary, since he did not intend to steal anything additional and since the foyer was not a "room" within the meaning of the burglary statute.
The People argue that the court did not abuse its discretion in refusing to give the proposed instruction because it was argumentative and further that any error was not prejudicial, but does not directly respond to Aubuchon's argument that the proposed instruction accurately states the law. The People rely on People v. Wright (1988) 45 Cal.3d 1126, 1135 (Wright), in which our Supreme Court held argumentative a proposed defense instruction "telling the jury that in determining whether it had a reasonable doubt of the identity of the assailant it should 'consider' . . . that the victim was the sole witness to identify the defendant, that the victim was a stranger to the city, and the victim's 'condition of sobriety or insobriety'; and that the defendant did not flee the city after the crime, but expressed his willingness to help recover the property and capture the robbers." (Id. at p. 1135.) The People argue Aubuchon's proposed instruction was argumentative because it "adopted the defense version of events, drew inferences favorable to the defense by assuming appellant did not have the intent to steal when he entered Ms. Lavicka's home, and told the jury what conclusion to draw from the evidence, specifically telling the jury that [Aubuchon's] actions 'did not constitute a new crime.' "
The People state that "whether a foyer can constitute a 'room' under Penal Code section 459" is an issue "of first impression" and contends we need not decide it. The People go on to note that the court in In re M.A. (2012) 209 Cal.App.4th 317 held a closet in a foyer was a room.
"A trial court must instruct on the law applicable to the facts of the case. (§§ 1093, subd. (f), 1127.) In addition, a defendant has a right to an instruction that pinpoints the theory of the defense. ([Wright, supra,] 45 Cal.3d [at p.] 1137.) The court must, however, refuse an argumentative instruction, that is, an instruction 'of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence.' " (People v. Mincey (1992) 2 Cal.4th 408, 437.) A proper pinpoint instruction pinpoints the theory of the defense rather than "improperly impl[ying] certain conclusions from specified evidence." (Wright, at p. 1137.) The trial court may properly refuse an instruction on the ground that the point was adequately covered by other instructions that were given on the subject (People v. Catlin (2001) 26 Cal.4th 81, 152, 153) or because it misstates the law. (See id. at p. 153.)
Aubuchon argues his proposed pinpoint instruction was not argumentative when read in the context of the jury's question. It is arguably true, as Aubuchon contends, that the assumption the People complain of—that Aubuchon lacked the intent to steal when he entered the home—is inherent in the jury's question, although the question was somewhat ambiguous. Regardless, the question does necessarily mean the jury had already reached a finding on that fact; it was, of course, still in deliberations and could ultimately have rejected Aubuchon's testimony about when he first decided to commit theft. If the court had given the instruction proposed by Aubuchon, the jury might well have understood it to mean the court was accepting Aubuchon's version of events. As such it was argumentative. Further, the proposed instruction was argumentative for the further reason that it in effect directed the jury that, assuming Aubuchon first formed the intent to commit theft when he was in the garage and had possession of Lavicka's belongings, he committed no crime (including burglary) by entering the foyer with those belongings in hand in order to exit the home.
Aubuchon's proposed pinpoint instruction was not only argumentative, it was legally incorrect in two respects. First, the room entered need not be the room from which the items are stolen for there to be a burglary. (See People v. Wright (1962) 206 Cal.App.2d 184, 185, 191 [entry into a building with intent to commit felony in the immediate vicinity of the building was sufficient to sustain charge of burglary]; People v. Nunley (1985) 168 Cal.App.3d 225, 231 ["California decisions have rejected the common-law notion of burglary which requires that a defendant enter premises with the intent to commit a crime 'therein' "].)
Second, theft is a continuing offense that requires achieving possession of property and carrying it away. (People v. Gomez (2008) 43 Cal.4th 249, 254-255.) "Although the slightest movement may constitute asportation [citation], the theft continues until the perpetrator has reached a place of temporary safety with the property." (Id. at p. 255, italics added.) When Aubuchon re-entered the foyer from the garage carrying Lavicka's bags and keys, he arguably was still in the process of committing theft, having not reached a place of temporary safety. If, as he entered the foyer, he intended to complete the theft by carrying the items away, he could be convicted of burglary. It was for the jury to decide whether he had that intent, and Aubuchon's proposed pinpoint instruction would have encroached on its role.
Aubuchon further argues that his proposed pinpoint instruction was correct and necessary because a foyer is not a "room" within the meaning of the burglary statute. We disagree. The case law supports a broad interpretation of room. (In re M.A., supra, 209 Cal.App.4th at pp. 320-321; see, e.g., id. at p. 323 [entryway closet]; People v. Mackabee (1989) 214 Cal.App.3d 1250, 1257-1258 [enclosed office area set off by waist-high counter in lobby of public building]; People v. Garcia (1963) 214 Cal.App.2d 681, 682-683 [liquor storage cage in rear of grocery store], disapproved on other grounds in Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 703-705.) Dictionary.com defines a "room" as "a portion of space within a building or other structure, separated by walls or partitions from other parts: a dining room." (<http://www.dictionary.com/browse/room?s=t>) Thesaurus.com lists as synonyms for room, among others, alcove, antechamber, cubicle, enclosure and hall. (<http://www.thesaurus.com/browse/room?s=t>) Lavicka's testimony (as well as Aubuchon's) reflects that the foyer in her home was walled on three sides, separated from the garage by a wall with a door and from the outside of the house by another door, bounded on a third side with a wall containing a rack for hanging things, and on the fourth side was separated from the second and third stories of the home by a staircase.
Aubuchon's reliance on People v. Sparks (2002) 28 Cal.4th 71 (Sparks) and People v. McCormack (1991) 234 Cal.App.3d 253 (McCormack) The issue in each was whether the defendant could be convicted of burglary if he formed the requisite intent after he entered the house but before he entered a bedroom within it. (See Sparks, at p. 73; McCormack, at p. 254.) Aubuchon would have us infer from their failure to discuss entry into a hallway that the courts in Sparks and McCormack concluded a hallway is not a room. We decline this invitation. Appellate decisions are not authority for propositions they do not address or decide. (Santisas v. Goodin (1998) 17 Cal.4th 599, 620.)
Moreover, Sparks undermines Aubuchon's argument. The Supreme Court recognized in Sparks that "California decisions applying section 459 have upheld burglary convictions based upon entry into diverse types of rooms—among them ticket offices, liquor cages, business offices, enclosed counter areas, school classrooms, hotel rooms, apartments, a kitchen in a single-family home, and, in McCormack, supra 234 Cal.App.3d 253, a bedroom within a single-family home." (Sparks, supra, 28 Cal.4th at p. 86.) By citing these cases with approval, Sparks endorsed a broad interpretation of the word "room."
Aubuchon's reliance in his reply brief on the California Supreme Court decision in People v. Garcia (2016) 62 Cal.4th 1116 (Garcia), issued while this appeal was pending, also fails to support his argument. He cites it for the proposition that " 'a room must generally possess some characteristics showing that it protects a privacy, safety or possessory interest.' " The issue in Garcia was whether "the simple fact that a defendant has committed two entries with felonious intent into a structure and a room within that structure" permitted multiple burglary convictions. (Id. at p. 1119.) The court held that a burglar in that circumstance "may be charged with multiple burglaries only if the subsequently entered room provides a separate and objectively reasonable expectation of protection from intrusion relative to the larger structure." (Id. at p. 1120.) In discussing that issue and establishing the standard that governs when a defendant can be convicted of multiple burglaries for entries into and within a single structure, the court took care to distinguish and leave unaltered the body of law governing defendants who lack the requisite intent when they enter a structure but are nonetheless convicted of burglary based on their entry of a room within it. The court wrote, "This language does not necessarily suggest that a room must be separately possessed or secured to be burgled—and we cast no doubt on the many Court of Appeal decisions upholding burglaries of rooms that do not fit this definition when the defendant entered the enclosing structure without felonious intent." (Id. at p. 1124, italics added [citing In re M.A., supra, 209 Cal.App.4th at p. 323, People v. Garcia (1963) 214 Cal.App.2d 681, 683, and Sparks, supra, 28 Cal.4th at pp. 86-87]; see also Garcia, supra, 62 Cal.4th at pp. 1129-1131 [distinguishing Sparks].) The concurring opinion of Justices Kruger and Liu took pains to do the same. (See Garcia, supra, at pp. 1135-1136, 1139 [Kruger, joined by Liu, JJ., concurring, discussing Sparks]; id. at p. 1137 [observing longstanding common law distinction between multiple burglary convictions based on entries into building and into internal room that is functionally equivalent to a separate dwelling and single burglary conviction based on entry into interior room after initial lawful entry into structure].)
Finally, we find unpersuasive Aubuchon's contention that "entry into the foyer for purposes of escaping the home" did not implicate the policies underlying the burglary statute because it "did not increase the danger or exacerbate the invasion of privacy which had already occurred when he entered the garage." " ' " 'Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape, and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.' " ' " (In re M.A., supra, 209 Cal.App.4th at p. 322, italics added, quoting People v. Montoya (1994) 7 Cal.4th 1027, 1042.) The court in M.A. held a defendant's entry into a home's closet was an entry into a room for the purpose of the burglary statute, concluding it was "fully consistent with the personal security concerns behind the statute." (In re M.A., at p. 322.) The court reasoned: "When a defendant, without permission, enters a closet in a home, he creates the risk that he will come into contact with the occupants of the home who object to his entry into the closet, either during his perpetration of the crime or his escape, and that violence will ensue. Indeed, the occupants of a building could react violently to an intruder's unauthorized entry into a closet . . . just as to an intruder's entry into another type of room." (Ibid.; see also People v. Thomas (1991) 235 Cal.App.3d 899, 906-907 [entry from garage into kitchen through locked door implicated policy interests underlying burglary laws of forestalling danger to personal safety and protecting occupants' expectation of privacy and security "within their living quarters"].)
Aubuchon's entry from the garage into the foyer, which was part of the living quarters of Lavicka's home, implicates the personal security concerns behind the statute. It increased the risk that Aubuchon would come into contact with an occupant of the apartment who would object to his presence and to his taking of her purse, backpacks and keys, and indeed, that is precisely what happened. Fortunately, violence did not ensue. But that does not mean his entry did not increase the risk that it would. Moreover, the foyer was separated from the garage by a door. Lavicka's "expectation of privacy and security within [her] living quarters was clearly greater than that in [her] garage, even if the garage may be considered part of the entire dwelling for burglary purposes." (People v. Thomas, supra, 235 Cal.App.3d at p. 906.)
In short, we conclude the term "room" as used in the burglary statute encompasses an entryway or foyer such as the one in Lavicka's home.
II.
The Court Did Not Abuse Its Discretion in Directing the Jury to Review Prior
Instructions and Determining Further Instruction Was Unnecessary.
Aubuchon further argues the trial court violated section 1138 by failing to provide additional instruction to the jury in response to its third question. Again, we disagree.
Section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." "Section 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law. [Citation.] If, however, ' "the original instructions are themselves full and complete, the court has discretion under . . . section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." ' " (People v. Smithey (1999) 20 Cal.4th 936, 985, fn. omitted.) A court need not always elaborate on the instructions previously given and may in some circumstances respond to a jury question by encouraging the jurors to reread previously given instructions. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1212-1213, superseded by statute on other grounds as stated in In re Steele (2004) 32 Cal.4th 682, 691.)
We review a claim of error under section 1138 for abuse of discretion. (People v. Lua (2017) 10 Cal.App.5th 1004, 1016.) "The trial court abuses its discretion if it refuses to offer any further instruction without first considering how it can best aid the jury. [Citation.] However, the trial court does not abuse its discretion when it determines the best way to aid the jury is by directing the jury to reread the applicable jury instructions that 'are themselves full and complete.' " (Id. at p. 1017.)
The People argue the instructions the court gave on burglary and theft were full and complete, and that it was not an abuse of discretion for the court to refer the jury back to those instructions. As we have discussed, those instructions told the jury the People had to prove that the defendant entered a building or room within a building and that when he entered it he intended to commit theft. The jury was also instructed that all jurors had to agree the defendant intended to commit theft at the time of entry. Beyond this, the court answered in the affirmative the jury's second question, which was whether a defendant who is already in a building when he develops intent to commit theft and then crosses a threshold from one room to another is "entering into a room within a building with intent to commit theft" and need not have that intent at the point he crosses from outside to inside. And the jury had been instructed on the elements of theft by larceny, the offense the People alleged defendant intended to commit when he entered the house or a room within the house. The burglary instruction told the jury to review this theft instruction in "decid[ing] whether the defendant intended to commit theft."
These instructions together informed the jury that, in order to convict Aubuchon of burglary, it had to find he intended, either when he entered the house or when he entered a room within the house, to take possession of property owned by someone else without the owner's consent, to deprive the owner of it, and to move and keep it for some period of time. These instructions provided the answer to the jury's question whether a defendant in a home with intent to commit theft is guilty of burglary if he crosses into another room to exit and not to take anything additional. If he entered the second room harboring the intent to commit theft, that was all that was required. The combination of entry and intent sufficed.
In short, no further instruction was required, and the trial court did not abuse its discretion in so concluding.
DISPOSITION
The judgment is affirmed.
/s/_________
Stewart, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.