Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. KA074493 George Genesta, Judge.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Kevin Leroy Baker appeals from the judgment entered following a jury trial that resulted in his conviction for second degree commercial burglary. Baker was sentenced to a prison term of seven years.
Baker’s sole contention on appeal is that the trial court committed instructional error.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
During the afternoon of March 22, 2006, Baker entered a Glendora Sav-On Drug Store and headed for the aisle containing skincare products, including Neutrogena Healthy Skin and Oil of Olay Skin Cream. Angela Hamilton, the store’s operations manager, recognized Baker from prior Sav-On locations where she had formerly worked. Hamilton had never seen Baker make purchases at the other stores, but he had repeatedly attempted to return merchandise using dirty, crumpled receipts from various Sav-On locations. Baker departed from the Glendora store without making a purchase after Hamilton and other employees asked if he needed assistance.
Approximately two hours later, Baker returned to the Glendora Sav-On and attempted to return two products, Neutrogena Health Skin and Oil of Olay Complete, for a cash refund. Baker presented a receipt from an Alhambra Sav-On store. Hamilton denied the refund, asked Baker to leave, and telephoned police when he refused. Baker then left the store and boarded a bus.
Glendora Police Officer John Bur apprehended Baker a few miles away as he exited the bus. A search of Baker’s backpack revealed the aforementioned Neutrogena and Oil of Olay products, as well as a Sav-On bag, various over-the-counter medicines, and numerous receipts in poor condition, issued from a variety of stores in different locations, contained in labeled manila envelopes. Some of the receipts bore the names of persons other than Baker. A dayplanner in the backpack contained a listing of product names with their UPC codes and prices, including information for the two skincare products found in the backpack. There were empty spaces on the Glendora store shelves where the items had been.
The People additionally presented evidence that in 2001, Baker had suffered a conviction for second degree burglary of a Home Depot store. In that incident, Baker attempted to leave the store with a tool he had not paid for. When the door alarm sounded, he told an employee he was trying to return the tool. Five receipts from various stores were found on Baker’s person.
Baker presented no evidence.
2. Procedure.
Trial was by jury. Baker was convicted of second degree commercial burglary (Pen. Code, § 459). After a bench trial, the trial court found Baker had served six prior prison terms (§ 667.5, subd. (b)) and had suffered one prior “strike” conviction for robbery. The court denied Baker’s oral motion for a new trial. It sentenced him to a term of seven years in prison, consisting of the midterm of two years, doubled pursuant to the Three Strikes law, plus three 1-year prior prison term enhancements (§ 667.5, subd. (b)). It imposed a restitution fine, a suspended parole revocation fine, a court security assessment, and a crime prevention fee. Baker appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. Failure to instruct on theft by false pretenses.
a. Additional facts.
At a sidebar discussion during the People’s case-in-chief, the trial court opined that the People could rely upon two different factual theories, i.e., that Baker actually stole the skincare items from the store during his first visit, or that he subsequently committed theft or larceny by attempting to exchange the products for a cash refund. The prosecutor confirmed that the two incidents were “intertwined,” but that he intended to rely on the second visit, in which Baker asked for a refund, as the basis for the burglary charge.
The trial court instructed the jury with CALCRIM No. 1700 (burglary). That instruction provided, in pertinent part: “The defendant is charged with burglary. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant entered a building; [¶] AND [¶] 2. When he entered a building, he intended to commit theft. [¶] To decide whether the defendant intended to commit theft, please refer to the separate instructions that I will give you on those crimes. [¶] 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 jury was also instructed with the standard theft instruction, CALCRIM No. 1800, (larceny), as follows: “To prove this crime, the People must prove that: [¶] 1. The defendant took possession of property owned by someone else; [¶] 2. The defendant took the property without the owner’s consent; [¶] 3. When the defendant took the property he intended to deprive the owner of it permanently; [¶] AND [¶] 4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief.”
During argument, the prosecutor explained that the People did not seek to prove Baker had the intent to steal when he entered the Glendora Sav-On the first time on March 22 and presumably stole the skin care items. Instead, the People’s theory was that Baker attempted to commit theft when he entered the Sav-On the second time and sought a refund. The prosecutor explained, “Now, in this case . . . there were two entries into this building. The first one was when he went in and stole the two products, and the second entry was when he went in for the refund. The burglary that we are alleging in this case is not when he first entered the store and stole the items. It is when he went in there and asked for the refund.” The prosecutor explained that there was no evidence regarding Baker’s intent during the first Sav-On visit. However, the prosecutor argued that Baker’s intent during the section visit was clear: “And that intent is to commit a theft, essentially to get the refund, to steal money from Sav-On.”
b. Discussion.
Burglary is the entry into any building with the intent to commit grand or petty larceny or any felony. (§ 459; e.g., People v. Smith (2006) 142 Cal.App.4th 923, 929.) Commission of the underlying, or “target,” felony is not an element of burglary. (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042.) A defendant may be liable for burglary if he or she enters with the requisite intent, even if a felony or theft is not actually committed, or if the felony ultimately committed is different from that contemplated on entry. (Ibid.)
When a defendant is charged with burglary, a trial court has a sua sponte duty to instruct both that he or she must have intended to commit a felony within the building entered, and on the elements of the underlying felony. “ ‘[W]here the evidence permits an inference that the defendant at the time of 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.’ [Citation.]” (People v. Hughes (2002) 27 Cal.4th 287, 348-349, citing People v. Failla (1966) 64 Cal.2d 560, 564; People v. Smith (1978) 78 Cal.App.3d 698, 706-707.) Therefore, “[i]n a burglary prosecution, complete and accurate jury instructions include the definition of each felony the defendant is alleged to have intended to commit upon entry into the burglarized structure.” (People v. Rathert (2000) 24 Cal.4th 200, 204.)
Baker contends that, although the court properly instructed on the elements of burglary, it erred by instructing on the wrong target felony. He urges that the target felony in the instant case was not larceny, the target crime upon which the trial court instructed, but was instead theft by false pretense. According to Baker, “[w]ithout sufficient evidence to support the theory of theft by larceny, and without any instruction on the theory of theft by false pretense, the jury necessarily engaged in ‘unguided speculation’ about the crime which defendant committed upon entry into the store.” Baker urges that the purportedly inadequate instruction requires reversal of his conviction. We disagree.
The trial court’s instruction with CALCRIM No. 1800 was adequate. Even assuming arguendo that the trial court was required to instruct on the specific theory of theft Baker intended to commit, the larceny instruction was proper, given that Baker’s conduct in the Sav-On demonstrated an attempt to commit larceny. People v. Davis (1998) 19 Cal.4th 301, is instructive. Davis considered “what crime is committed in the following circumstances: the defendant enters a store and picks up an item of merchandise displayed for sale, intending to claim that he owns it and to ‘return’ it for cash or credit; he carries the item to a sales counter and asks the clerk for a ‘refund’; without the defendant’s knowledge his conduct has been observed by a store security agent, who instructs the clerk to give him credit for the item; the clerk gives the defendant a credit voucher, and the agent detains him as he leaves the counter with the voucher; he is charged with theft of the item.” (Id. at p. 303.) Davis concluded that under such circumstances, the defendant was guilty of trespassory larceny. (Ibid.) The “defendant’s intent to claim ownership of [the merchandise, a shirt] and to return it to [the store] only on condition that the store pay him a ‘refund’ constitutes an intent to permanently deprive [the store] of the shirt within the meaning of the law of larceny, and hence an intent to ‘feloniously steal’ that property within the meaning of Penal Code section 484, subdivision (a)[.]” (People v. Davis, supra, at p. 317.) Davis concluded, “It follows that a defendant who takes an item from a store display with the intent to claim its ownership and restore it only on condition that the store pay him a ‘refund’ must be deemed to intend to permanently deprive the store of the item within the meaning of the law of larceny.” (Id. at p. 316.)
The same is true here. Baker attempted to obtain a cash refund for merchandise he had not purchased from the Glendora Sav-On, without Sav-On’s consent, intending to remove the cash from the store and permanently keep it. Thus, his conduct satisfied all the elements of attempted larceny, under the instruction given by the trial court. The trial court accordingly did not instruct on the wrong target offense. Even assuming arguendo that the instruction on theft by false pretense would have been more closely tailored to the evidence, the instruction on larceny was adequate to inform the jury of the elements of the underlying crime.
Furthermore, Baker cites no authority persuading us that a burglary conviction must be reversed when a trial court instructs on theft as the target offense, but fails to specify the particular theory of theft. “In California, the ancient common law distinctions between the theories of larceny by trick and theft by false pretenses no longer exist by statute; under section 484, there is simply one consolidated crime of theft, which the jury may find upon either theory, if there is an ‘unlawful [taking]’ (§ 952). As stated by our Supreme Court in People v. Ashley (1954) 42 Cal.2d 246, 258, ‘The purpose of the consolidation was to remove the technicalities that existed in the pleading and proof of these crimes at common law. . . . Juries need no longer be concerned with the technical differences between the several types of theft, and can return a general verdict of guilty if they find that an “unlawful taking” has been proved. [Citations.]’ ” (People v. Counts (1995) 31 Cal.App.4th 785, 793; see also People v. Nor Woods (1951) 37 Cal.2d 584, 586 [no error in failing to instruct jury that it must agree on whether a theft was committed by trick and device, or by false pretense; “defendant could be found guilty of theft by one means or another, and since by the verdict the jury determined that he did fraudulently appropriate the property, it is immaterial whether or not they agreed as to the technical pigeonhole into which the theft fell”]; People v. Traster (2003) 111 Cal.App.4th 1377, 1389 [defendant was convicted of theft by false pretenses, but the evidence showed theft by trick and device; although defendant was convicted under an erroneous theory, error was harmless where it was merely technical].) As explained in People v. Counts, supra, in the context of affirming a conviction for theft, “ ‘In the instant action it was irrelevant whether defendant obtained the [merchandise] by trick or intimidation of the store employees. The end result was that he left the store with property he had not paid for.’ [Citation.] [¶] It would obviously be very hard to explain why a theft conviction should be reversed on the grounds that the evidence showed the defendant was indeed guilty of theft, but would have been guilty of a differently denominated type of theft under a common law system which has been repealed by statute.” (People v. Counts, supra, 31 Cal.App.4th at p. 793; see also People v. North (1982) 131 Cal.App.3d 112, 117-118 [jury was instructed on larceny by trick even though false pretenses was a more accurate description of the crime; the error was harmless because “a judgment of conviction must be affirmed if there is sufficient evidence to support a theft conviction on any theory”].) Here, Baker was not convicted of theft, and we are not concerned with whether the elements of larceny or theft by false pretense were actually established. As noted, the defendant need not accomplish the target crime in order to be convicted of burglary. (People v. Montoya, supra, 7 Cal.4th at pp. 1041-1042; People v. Hughes, supra, 27 Cal.4th at p. 351.) Thus, any technical error is of even less moment than in the aforementioned cases.
Nor was this a case in which the jury could have speculated about which of two distinct crimes, such as theft or sexual assault, the defendant intended when he entered the building. (See generally People v. Hughes, supra, 27 Cal.4th at pp. 348- 353.) The danger in failing to instruct on the elements of the target offense in that situation is that the jury will be uncertain which acts constitute the target crime, and may erroneously conclude the defendant had the intent to commit an act not amounting to a crime. (See generally People v. Hughes, supra, at pp. 352-353.) That could not have occurred here. “[T]he intent to commit any felony (or theft) suffices for burglary” (id. at p. 351), and the evidence was more than sufficient to show Baker intended some type of theft, whether denominated larceny or theft by false pretense. There were no other, non-theft felonies suggested by the evidence. There was no prejudical error.
Indeed, “the jury need not unanimously decide, or even be certain, which felony defendant intended as long as it finds beyond a reasonable doubt that he intended some felony.” (People v. Hughes, supra, 27 Cal.4th at p. 351.)
Because we conclude the trial court had a sua sponte duty to instruct on the underlying offense, and fulfilled that duty, we need not reach either the People’s contention that Baker waived his claim by failing to object, or Baker’s contention that his trial counsel was ineffective for failing to request a theft by false pretense instruction.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P.J., KITCHING, J.