Opinion
E038967
12-5-2006
THE PEOPLE, Plaintiff and Respondent, v. RICK JAMES BELTZ, Defendant and Appellant.
Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry J. T. Carlton, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted defendant of residential burglary and found that he committed the felony while released on his own recognizance in a prior case. In this appeal, defendant challenges: 1) the jury instruction on circumstantial evidence (CALJIC No. 2.02); and 2) the two-year sentence enhancement for committing the burglary while released on bail in a prior case (Pen. Code, § 12022.1). We reject both arguments and affirm the conviction.
All further statutory references will be to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURE
1. Case No. FSB049974 — "The Methamphetamine Case"
On May 25, 2005, defendant plead guilty to felony methamphetamine possession (Health & Saf. Code, § 11377, subd. (a)) and several misdemeanors. Defendant also admitted to having a prior serious or violent felony conviction under the "Three Strikes" law (§§ 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)) and admitted to not having remained free of custody for a minimum of five years (§ 667.5, subd. (b).) Under the plea agreement, which included a Vargas waiver, defendant received a sentence on all charges totaling eight years six months. Defendant was released on his own recognizance and agreed to return to court for resentencing on June 23, 2005. The plea agreement provided that, if defendant appeared at the resentencing without having committed any new offenses, the prosecution would dismiss the misdemeanor counts and the strike allegation, and the court would impose a sentence of 16 months. If defendant did not return to court on that date, or if he committed new crimes, he would be sentenced to the term initially imposed.
People v. Vargas (1990) 223 Cal.App.3d 1107.
Defendant committed burglary on May 27, 2005, and so the trial court found that he had violated the Vargas waiver. On September 22, 2005, the trial court sentenced defendant to serve six years in state prison on the methamphetamine charge, consecutive to the sentence on the burglary charge.
For some reason, the trial court reduced defendants term from eight years six months to six years by sentencing him only on the felony possession charge.
2. Case No. FSB050184 — "The Burglary Case"
On May 27, 2005, Harry Friedman returned home from work about 2:30 p.m. to find his home in a state of disarray, with several duffel bags and suitcases packed with clothing and other items from his house. He heard a neighbors dog barking and went into his backyard to investigate. Mr. Friedman saw defendant walking between two of his neighbors houses carrying one of Mrs. Friedmans backpacks. Mr. Friedman ran up to defendant and tackled him to the ground. Defendant said, "Why are you tackling me[?] You should be thanking me. Im the one who chased the people that were robbing your house away." Defendant then got up and walked away, leaving the backpack. Mr. Friedman started to follow defendant, but lost him after defendant started to run, cut through some yards, and disappeared behind some bushes. Mr. Friedman then contacted the San Bernardino County Sheriffs Department and gave a description of defendant as wearing dark cargo pants, a dark shirt, and a "unique" baseball cap with eyeballs on the front.
A short time later, a sheriffs deputy found a shirtless defendant, wearing dark cargo shorts, walking out from under the rear deck of a house about a quarter of a mile away from the Friedman home. Defendant was staying at the house. The deputy identified himself and ordered defendant to stop. Defendant refused to stop and climbed a stepladder to go into the house. The deputy obtained permission from the owner to search the house and found defendant trying to hide under a bed. Defendant fit the description that Mr. Friedman had given, and he had on his person a pair of plastic gloves and a watch belonging to Mrs. Friedman. Defendant told the deputy that he had struggled with two people he had seen carrying items out of the Friedman house. He said that he had taken the backpack away from them and picked the watch up off the ground. In the room that the deputy saw defendant enter from the stepladder, the deputy found a dark T-shirt and a baseball cap with two eyeballs on the rim. Mr. Friedman identified the shirt and hat as those he had seen defendant wearing earlier.
A jury convicted defendant of residential burglary. (§ 459.) The jury found true allegations that defendant had two prior serious or violent felony convictions under the Three Strikes law and within the meaning of section 667, subdivision (a)(1). The jury also found true the allegation that defendant had committed the robbery while released from custody on his own recognizance. (§ 12022.1.)
The trial court sentenced defendant to 25 years to life under the Three Strikes law, consecutive to a 12-year term consisting of two years on the section 12022.1 allegation and five years each for the two prior serious felonies. The six-year sentence for methamphetamine possession in case No. FSB049974 was to be served consecutive to these terms.
DISCUSSION
1. Jury Instruction on Circumstantial Evidence
Defendant argues that the trial court erred in instructing the jury using CALJIC No. 2.02 rather than CALJIC No. 2.01. CALJIC No. 2.02 instructs the jury as to how it should evaluate circumstantial evidence on the question of specific intent. CALJIC No. 2.01 instructs the jury on how it should evaluate circumstantial evidence generally. The parties here agree that the trial court erred when it gave the more specific CALJIC No. 2.02 instead of the more general CALJIC No. 2.01, although the People argue that the error was harmless.
CALJIC No. 2.01, the general instruction, is required to be given when the case rests substantially or entirely on circumstantial evidence. (People v. Bloyd (1987) 43 Cal.3d 333, 351.) But CALJIC No. 2.02, the more specific instruction, was designed to be used in place of CALJIC No. 2.01 when "the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state." (People v. Hughes (2002) 27 Cal.4th 287, 347; People v. Honig (1996) 48 Cal.App.4th 289, 341.)
Here, the prosecution relied on circumstantial evidence to prove more than just defendants mental state. The prosecution was required to show that defendant: (1) entered the Friedman home; (2) that he had the specific intent to steal; (3) that he actually stole property from the home; and (4) that he had the specific intent to permanently deprive the Friedmans of their property. (§ 459.) The prosecution had no direct evidence, such as witness testimony, that defendant was in the Friedmans home and stole their property. Rather, they introduced the circumstantial evidence that Mr. Friedman found defendant near their home, in a neighbors backyard; that defendant possessed property that was formerly in the Friedman home; and that he ran away from Mr. Friedman and attempted to elude police by hiding under a bed. Thus, because the prosecution relied on circumstantial evidence to prove more than just defendants mental state, the court should have provided the more general circumstantial evidence instruction, CALJIC No. 2.01.
A trial courts "failure to give CALJIC No. 2.01, where appropriate, is assessed under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 . . . , i.e., reversal is required only when the reviewing court finds, after an examination of the entire cause, that it is reasonably probable a result more favorable to the defendant would have been reached in the absence of the error." (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1274.) In other words, we must determine whether it is reasonably probable that the jury would have found defendant not guilty of burglary had the trial court given the instruction on circumstantial evidence generally, rather than just as it applied to the element of specific intent.
The gist of CALJIC No. 2.01 is that circumstantial evidence may be used to support a finding of guilt only where the circumstances are both consistent with the theory that the defendant is guilty of the crime and inconsistent with the theory that the defendant is not guilty. The instruction expands on this concept by explaining "if the circumstantial evidence . . . permits two reasonable interpretations, one of which points to the defendants guilt and the other to . . . innocence, you must adopt that interpretation that points to the defendants innocence, and reject that interpretation that points to . . . guilt." This general instruction differs from the more specific CALJIC No. 2.02 that was actually given in this case in that it makes clear that each element of a crime must be proven beyond a reasonable doubt.
As to the four elements of residential burglary discussed above, the jury was properly instructed as to the two elements involving specific intent. Thus, we must determine whether, if the jury had been instructed using the more general CALJIC No. 2.01, it is reasonably probable that they would also have found true the other two elements of burglary on which they were not properly instructed—that defendant entered the Friedmans home and stole their possessions.
The circumstantial evidence that defendant entered the Friedmans home and stole their possessions is as follows: Mr. Friedman found defendant carrying Mrs. Friedmans backpack in a neighbors backyard; defendant fled from Mr. Friedman, leaving the backpack, after Mr. Friedman tackled him; defendant was shirtless when arrested, but a shirt and unusual hat matching Mr. Friedmans description was found in the room through which defendant first entered the house, where he was found trying to hide under a bed; and defendant had rubber gloves and Mrs. Friedmans watch on his person when he was found. This circumstantial evidence is consistent with defendant having entered the Friedmans home and stolen their possessions.
Defendant argues, that, given his explanations to Mr. Friedman and to the deputy for having the backpack and the watch in his possession, the above evidence is also reasonably consistent with the theory that he had accosted the real burglars outside the Friedman home and struggled with them, rather than having entered the home and stolen the backpack and watch.
We do not find it reasonably probable that, had the jury been properly instructed on circumstantial evidence generally, they would have found defendant not guilty. This is because the theory that defendant obtained the backpack and watch after struggling with the real burglars is not a reasonable, rational interpretation of the evidence. If events had taken place as defendant claimed, he would have had no need to run from Mr. Friedman or the deputy, to change his clothes, or to hide under a bed. Neither would he have taken the backpack and watch away from the Friedman home without attempting to return them.
Thus, we find that the trial courts failure to properly instruct the jury using the more general circumstantial evidence instruction, CALJIC No. 2.01, was not prejudicial error. This is because it is not reasonably probable that the jury would have found defendant not guilty had it been properly instructed.
2. On-Bail Sentencing Enhancement
Defendant also contends the prosecution violated the plea agreement in the methamphetamine case when it alleged the section 12022.1 two-year sentencing ("on-bail") enhancement in the burglary case. Specifically, defendant argues that the plea agreement in the methamphetamine case included a negotiated penalty if defendant violated the law while released on his own recognizance under the Vargas waiver—a sentence of eight years six months. Defendant contends that the prosecution sought more than the negotiated penalty by charging the two-year sentence enhancement in the burglary case for the very same conduct (violating the law while released from custody in the methamphetamine case), in addition to the negotiated penalty.
"Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison." (§ 12022.1, subd. (b).)
We find this argument to be without merit. It is defendants burden to demonstrate that the trial court erred such that reversal is merited. (Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.) Here, defendant can point to no case law stating that a criminal defendant cannot be sentenced on the on-bail enhancement when he commits the secondary crime while out on a Vargas waiver from the primary case.
The respondent People aptly cite People v. Walker (2002) 29 Cal.4th 577 (Walker), to support their point that defendant can be punished for burglarizing the Friedman home under both the Vargas waiver provisions and the on-bail enhancement because the two schemes punish for two different reasons. In Walker, the defendant was charged with a felony and then released on bail. He later failed to appear for a court date and was charged with a felony failure to appear. (§ 1320.5.) The prosecution also alleged the on-bail enhancement in the failure to appear case because he committed that crime while out of custody on bail. When the defendant challenged the enhancement on appeal, because it punished the very same action as did the failure to appear charge, our Supreme Court affirmed. The Supreme Court reasoned that, while the on-bail enhancement and the failure to appear charge share a common element in that they both seek to punish defendants who commit crimes while out on bail, the two statutes punish for different reasons, and thus, defendant could be charged with both. (Walker, supra, 29 Cal.4th at pp. 584-585, 587-588.)
Here, the purpose of the on-bail enhancement is to penalize a defendants recidivism while released on his own recognizance (see Walker, supra, 29 Cal.4th at p. 584), whereas the purpose of imposing the higher, agreed-upon sentence for violation of a Vargas waiver is to punish both the defendants failure to comply with the own recognizance portion of the plea bargain and his violation of the courts trust. Thus, under the Supreme Courts analysis in Walker, defendant can be punished under both schemes.
DISPOSITION
The judgment is affirmed.
We concur:
RAMIREZ, P. J.
KING, J.