Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super.Ct.No. RIF133302 Patrick F. Magers, Judge.
David L. Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Donald W. Ostertag, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
A jury convicted defendant and appellant Charles Preston Brooks of commercial burglary (Pen. Code, § 459; count 1), vandalism (§ 594, subd. (b)(2); count 2), and assault with a deadly weapon (§ 245, subd. (a)(1); count 3). The trial court found true the allegation that defendant had served a prior prison term. (§ 667.5, subd. (b).) The court imposed a total prison term of four years in state prison.
All further statutory references will be to the Penal Code, unless otherwise indicated.
In his opening brief, defendant contends: 1) the jury was improperly instructed as to the intent element of assault with a deadly weapon and vandalism, and 2) he was denied his right to a jury trial on the truth of the prior prison term allegation. After reading the respondent’s brief, defendant withdrew his second argument. We affirm.
FACTUAL BACKGROUND
Noel Rodriguez was the property manager for a storage facility. The facility had one gate for customers entering the facility and a separate gate for exiting the facility. To open either gate, the customer had to enter an access code number that was issued to them at the time they rented their storage unit. From the office, Rodriguez had a clear view of cars entering and exiting through the gates. As the cars entered, the computer screen in the office would display the unit number and the customer’s name, but not the code number, as long as it was entered correctly.
During the week of October 23, 2006, the date of the charged incident, Rodriguez noticed that the locks on several storage units had been cut and the units had been opened. He further noted that the access code belonging to customer Theresa Badir had been used frequently. About two weeks prior, Badir had informed Rodriguez that she was going to let her friend and her friend’s boyfriend (defendant) use her storage unit. She gave them her code number. On the day Badir informed Rodriguez, her friend and defendant were with her and Rodriguez saw them.
On October 23, 2006, Rodriguez was in the office when he saw Badir’s access code appear on the computer screen. He observed that the car (a van) using Badir’s access code was being driven by defendant. Rodriguez drove around the property until he found the van. It was parked at unit C-1147. Rodriguez noticed that there was a small dog inside the van. He also saw that some boxes had been dumped inside the van. Rodriguez asked defendant if that was his storage unit, and defendant said yes; however, Rodriguez knew that it was not defendant’s unit. Rodriguez pressed his “panic button,” which was a security device on his key chain that summoned the police. Rodriguez returned to the office to wait for the police to respond. He disabled Badir’s access code so that defendant would not be able to open the exit gate. A customer then informed Rodriguez that a man with bolt cutters was attempting to cut the chain off of the maintenance gate. Rodriguez walked to the gate and saw defendant cutting the chain. He told defendant to stop and informed him that he had called the police. Defendant ignored Rodriguez, got in the van, and tried to push the gate open with the van. Rodriguez stood in front of the van in an effort to prevent defendant from leaving the facility. Defendant told Rodriguez that if he did not get out of the way, he was going to run him over. The van approached Rodriguez and was just touching him, when defendant again told him to move or else he would run him over. Rodriguez got out of the way, and defendant drove off.
By the time the police arrived, defendant was gone. The police later identified defendant as a suspect, and Rodriguez identified him from a photographic lineup. Defendant was taken into custody. After being issued a Miranda warning, defendant admitted that he had bolt cutters on the day of the incident, and that he used them to cut the lock on the gate to force his way out of the storage facility property.
Miranda v. Arizona (1966) 384 U.S. 436.
ANALYSIS
The Court Properly Instructed the Jury Regarding Intent
Defendant argues that the court provided a “fatally flawed” written version of CALCRIM No. 252 and, as a result, the jury was improperly instructed as to the intent element required for assault with a deadly weapon and vandalism. Specifically, he contends that under the instructions given, if the jury believed that he had the intent to commit theft when he entered the storage facility, the jury was required to also believe that he had the necessary intent to be guilty of assault with a deadly weapon and vandalism. We disagree.
Defendant’s entire argument is based on one variance between the oral and written instructions. The court orally instructed the jury with CALCRIM No. 252 as to the intent element of the charged crimes, as follows: “Every crime charged in this case requires proof of the union or joint operation of act and wrongful intent. The crimes charged in Counts 2 and 3, felony assault and vandalism, require[] general criminal intent. To be guilty of these offenses, a person must not only commit the prohibited act but must do so intentionally or on purpose. It is not required, however, that the person intend to break the law. The act required is explained in the instruction for each crime. The crime charged in Count 1, burglary, requires a specific intent or mental state. . . . The act and the intent or mental state required are explained in the instruction for the crime.”
The written instruction given to the jury varied in one slight regard, as shown in italics: “Every crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent. [¶] The crimes charged in Counts 2 and 3, felony assault and vandalism require[] general criminal intent. To be guilty of these offenses, a person must not only commit the prohibited act, but must do so intentionally or on purpose. It is not required, however, that the person intend to break the law. The act required is explained in the instruction for each crime charged in Count 1, burglary. [¶] The crime requires a specific intent or mental state. To be guilty of this offense, a person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the intent or mental state required are explained in the instruction for the crime.” (Italics added.)
“[W]hen the jury has received an instruction in both spoken and written forms, and the two versions vary, we assume the jury was guided by the written version. [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 123.) “‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ [Citation.]” (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) The question is whether there is a “reasonable likelihood” that the jury understood the instruction as the defendant asserts. (People v. Kelly (1992) 1 Cal.4th 495, 525.)
Here, there was no reasonable likelihood that the jury understood the variance in the written version of CALCRIM No. 252, as defendant claims. He contends that under the instructions given, the jury could have found that he had the necessary intent to be guilty of assault with a deadly weapon and vandalism, if it found that he committed the act described in the instruction on burglary. However, the sentence at issue did not even refer to intent. It states, “The act required is explained in the instruction for each crime charged in Count 1, burglary.” (Italics added.) Moreover, the sentence was clearly a mistake, since it did not make sense in the context of the paragraph. Furthermore, the instructions, as a whole, were not misleading. Contrary to defendant’s contention that the jury was given no instructions explaining the intent necessary for vandalism and assault, the court expressly instructed the jury that “[t]he crimes charged in Counts 2 and 3, felony assault and vandalism require[] general criminal intent. To be guilty of these offenses, a person must not only commit the prohibited act, but must do so intentionally or on purpose. It is not required, however, that the person intend to break the law.” (Italics added.) In addition, the court gave the jury instructions for each of the charged crimes. The instructions expressly set forth the elements that the prosecution was required to prove, including the particular intent requirement for each offense. A reasonable jury would have understood that it had to find each required element in order to find defendant guilty.
Even if we did find error, the error was harmless under any standard. There was more than sufficient evidence to support defendant’s convictions of vandalism and assault with a deadly weapon. Defendant was observed using bolt cutters to cut through the chain used to lock the maintenance gate at the storage facility. Moreover, he admitted to the police that he forced his way out of the storage facility property by using bolt cutters to cut the lock from the gate. In addition, when Rodriguez stood in front of the gate to prevent defendant from leaving the property, defendant twice threatened to run Rodriguez over if he did not move out of the way. Defendant drove toward Rodriguez with his van, snapping the gate doors open and contacting Rodriguez right before Rodriguez moved out of the way.
Therefore, even absent the purported instructional error, the jury would have found defendant guilty of the charged crimes.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., KING, J.