Opinion
F071582
09-25-2017
THE PEOPLE, Plaintiff and Respondent, v. IVAN DAVIS, Defendant and Appellant.
Peter J. Boldin, 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, Stephen G. Herndon and Peter W. Thompson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF294982)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge. Peter J. Boldin, 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, Stephen G. Herndon and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Franson, J.
-ooOoo-
Ivan Davis appeals from a judgment of conviction on counts of burglary, vehicle taking, receiving stolen property, and battery. He alleges instructional error with respect to the charges of burglary and receiving stolen property. The claims have merit. We therefore affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
Davis was charged by information with first degree burglary (Pen. Code, §§ 459, 460, subd. (a); count 1); unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 2); receiving a stolen motor vehicle (§ 496d, subd. (a); count 3); and misdemeanor domestic battery (§ 243, subd. (e)(1); count 4). He was further alleged to have suffered a prior strike and serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)). Davis pleaded no contest to count 4 and ultimately admitted the prior conviction allegations. All remaining charges were tried before a Tulare County jury.
Unless otherwise specified, all further statutory references are to the Penal Code.
Viewed in the light most favorable to the judgment, the trial evidence established the following facts. On February 5, 2014, Davis broke into the home of an ex-girlfriend (the victim) who had recently ended their romantic relationship. He entered the house with an assortment of items, which the prosecutor euphemistically described as a "revenge kit." Those items consisted of a hatchet, a pair of handcuffs, and sexual paraphernalia. While inside the home, Davis cooked himself a meal, drank alcohol, and poured bleach over articles of clothing in the victim's bedroom dresser.
The victim came home shortly before 6:00 p.m. and immediately suspected that she had been burglarized. Accordingly, she exited the house and called 911. While waiting to speak to a dispatcher, the victim saw Davis standing at her front door. Frightened by his presence, she "took off running directly across the street, screaming and hollering." The victim started "banging" on a neighbor's door but was soon attacked by Davis, who attempted to drag her back to her house. The neighbor saw what was happening and called 911 on her own phone. The neighbor also opened her front door, which apparently motivated Davis to let go of the victim. He retreated to the victim's house, located the keys to a truck parked inside of her garage, and fled in that vehicle. At trial, the victim testified that Davis never had permission to drive the truck.
Police apprehended Davis the following day at a third party residence. The victim's truck was found at the same location. The arresting officer testified that Davis waived his right to remain silent and made several incriminating statements. He allegedly admitted to entering the victim's home without permission and removing several items of personal property. The stolen items consisted of a watch, an iPod, miscellaneous jewelry, a jewelry box, and a pair of gloves. He also admitted to taking the victim's truck without her permission and driving it again on the day of his arrest to run an errand. Davis testified on his own behalf and denied making those statements.
The jury deliberated for approximately 45 minutes before returning guilty verdicts on all counts. Davis was later sentenced to an aggregate prison term of 13 years. Using the burglary count as the principal offense, the trial court imposed the middle term of four years, which was doubled to eight years because of the prior strike. Concurrent four-year terms were imposed for counts 2 and 3, the latter of which was stayed pursuant to section 654. A consecutive five-year term was imposed for the prior felony conviction. No jail time was imposed for the misdemeanor conviction on count 4. This appeal is timely.
DISCUSSION
Standard of Review
Claims of instructional error are reviewed de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "When one of the theories presented to a jury is legally inadequate, such as a theory which ' "fails to come within the statutory definition of the crime" ' [citation], the jury cannot reasonably be expected to divine its legal inadequacy. The jury may render a verdict on the basis of the legally invalid theory without realizing that, as a matter of law, its factual findings are insufficient to constitute the charged crime. In such circumstances, reversal generally is required unless 'it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.' " (People v. Perez (2005) 35 Cal.4th 1219, 1233; accord, People v. Chun (2009) 45 Cal.4th 1172, 1203 (Chun) ["In this situation, to find the error harmless, a reviewing court must conclude, beyond a reasonable doubt, that the jury based its verdict on a legally valid theory."].)
Count 1
"Burglary is defined, in pertinent part, as the entry into a dwelling with the intent to commit larceny or any felony. (§ 459.)" (People v. Harris (2013) 57 Cal.4th 804, 842.) The record indicates that the People originally intended to argue Davis committed burglary by entering the victim's home with intent to commit "theft or vandalism." On the night before closing arguments, the prosecutor submitted a request to have the previously agreed-upon burglary instruction (CALCRIM No. 1700) edited such that all references to vandalism would be deleted and replaced with the word "assault." The trial court begrudgingly conducted a hearing on this issue the next morning, repeatedly complaining that the jury was being inconvenienced by the parties' failure to agree on the wording of the instruction.
The trial court allowed the requested modification, but it demanded the prosecutor immediately select an additional instruction for the assault theory. The prosecutor asked for "five, ten minutes" to conduct the necessary research, and the judge replied, "We don't have five to ten minutes, so which instruction? Give me the [CALCRIM] number." The trial court then suggested the use of CALCRIM No. 915, which defines simple assault, and the prosecutor agreed. When proceedings resumed in front of the jury, the judge ordered both the prosecutor and defense counsel to apologize to the jurors for "wasting [their] time."
The trial court later instructed the jury on count 1 as follows: "[T]he People must prove that: 1. The defendant entered a residence [and] 2. When he entered the residence, he intended to commit theft or assault. ... [B]urglary was committed if the defendant entered with the intent to commit theft or assault." The jury was directed to "refer to the separate instructions" on the elements of theft and assault. However, the court neglected to include any instructions on theft/larceny. The jury was only instructed on the crime of simple assault pursuant to CALCRIM No. 915.
The instruction read: "Simple assault is defined as: [¶] 1. The defendant did an act that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] AND [¶] 4. When the defendant acted, he had the present ability to apply force to a person...."
Simple assault is a misdemeanor offense. (§ 241, subd. (a); People v. Baker (1999) 74 Cal.App.4th 243, 251.) Davis therefore argues, and the Attorney General concedes, that the trial court committed reversible error by instructing that the defendant could be convicted of burglary based on a legally inadequate theory of guilt. The parties also agree that the trial court erred by failing to instruct on the elements of theft.
" '[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.' " (People v. Hughes (2002) 27 Cal.4th 287, 348-349.) In light of these principles, it was plain error to instruct the jury that Davis was guilty of burglary if he entered the victim's home with the intent to commit misdemeanor assault. The burglary conviction must be reversed unless we can determine, beyond a reasonable doubt, that the jury arrived at its verdict pursuant to a legally valid theory. (Chun, supra, 45 Cal.4th at p. 1203.)
Although theft has a commonly understood meaning consistent with its legal definition, the trial evidence does not necessarily compel a finding that Davis entered the victim's dwelling with the intent to steal. By Davis's own admission, he was in the house for nearly three hours before the victim came home. The fact that he came equipped with a "revenge kit," i.e., the hatchet, handcuffs, and sexual paraphernalia, suggested a far more sinister plan. Jurors could have reasonably concluded that stealing the victim's personal property was an afterthought. Since Davis was obviously (and again, by his own admission) waiting for the victim to come home, there is a distinct possibility that the jury based its verdict on the theory of entry with intent to commit simple assault. The jurors may very well have believed Davis intended to commit additional felonies, but no such theories were presented in the instructions. Under these circumstances, the instructional error cannot be deemed harmless.
Davis does not attempt to argue the evidence is insufficient to support the jury's verdict. Such a claim would be frivolous. He was charged with committing burglary by "entering an inhabited dwelling house ... with the intent to commit larceny [or] any felony." There was substantial evidence of his unlawful entry with intent to commit larceny, which included the arresting officer's testimony that he admitted harboring such an intent, as well as the intent to commit various other felony offenses. The People are thus entitled to retry him on count 1. (People v. Edwards (1985) 39 Cal.3d 107, 118.)
Count 3
Davis assigns error to the trial court's failure to instruct on the preclusive effect of a vehicle taking conviction under count 2 in relation to the count 3 charge of receiving stolen property. Our District recently explained the controlling legal principle, which we labeled "the 'taking and receiving doctrine,' " in People v. Calistro (2017) 12 Cal.App.5th 387 (Calistro). For the reasons that follow, the count 3 conviction must be reversed and dismissed.
Count 2 of the information alleged a violation of Vehicle Code section 10851, subdivision (a), which applies to "[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner ...." "By its terms, the statute can be violated in two ways—by taking the vehicle (theft) or by driving the stolen vehicle after the theft is complete ('posttheft driving')." (Calistro, supra, 12 Cal.App.5th at p. 394.) The distinction is important because of the rule that a person cannot be convicted of both taking and receiving the same property. (Id. at p. 395, citing People v. Jaramillo (1976) 16 Cal.3d 752, 757 & § 496, subd. (a).) "If the Vehicle Code section 10851(a) conviction is for taking the vehicle, it is a theft conviction and it bars a conviction for receiving the same vehicle as stolen property. But if the Vehicle Code section 10851(a) conviction is for posttheft driving, it is not a theft conviction and it does not bar a conviction for receiving the same vehicle as stolen property. (Calistro, supra, 12 Cal.App.5th at p. 395.)
In People v. Recio (2007) 156 Cal.App.4th 719, the Fourth District Court of Appeal held that "[w]here a defendant is charged with stealing and receiving the same property, the court should instruct the jury to determine the defendant's guilt on the theft count first, and if it finds the defendant guilty of the theft, to return the receiving verdict unsigned." (Id. at p. 726.) The California Supreme Court adopted that holding in People v. Ceja (2010) 49 Cal.4th 1: "[J]uries should be instructed to reach a verdict on the theft charge first when the defendant is also charged with receiving the stolen property. A guilty verdict on the theft charge makes it unnecessary to consider the receiving charge." (Id. at p. 10.) Davis argues that since he was accused in counts 2 and 3 of taking and receiving the same property, the trial court should have given the jury instructions on the taking and receiving doctrine (e.g., CALCRIM No. 3516 or CALJIC No. 17.04). We agree.
Counts 2 and 3 described the subject property as the victim's truck, specifically identifying the make, model, and license plate number. --------
Although the evidence was overwhelmingly indicative of a felonious taking, i.e., vehicle theft, the testimony of the arresting officer constituted proof that Davis also committed post-theft driving by using the victim's truck on the day of his arrest. Given those circumstances, the Attorney General argues there was no need for instructions on the taking and receiving doctrine because there was sufficient evidence to support a conviction on count 2 under a theory of post-theft driving, which would not have precluded a separate conviction for receiving the same stolen vehicle. This argument is flawed in that it overlooks the prosecutor's specific election of the taking/theft theory. Critically, the jury was not given a unanimity instruction despite evidence that Vehicle Code section 10851, subdivision (a) was violated in different ways and on separate occasions. During closing argument, the prosecutor alleged that Davis "fled the scene by stealing [the victim's] car." The prosecutor added that he "took it without consent, without permission" and "taking that vehicle makes it stolen property. And [Davis] knew it because he was the one who stole it."
"Ordinarily, for purposes of substantial evidence review, 'the prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury.' [Citation.] [There is] an exception, however, when the constitutional right to a unanimous jury is implicated. To protect this right, 'if one criminal act is charged, but the evidence tends to show the commission of more than one such act, "either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act." ' " (People v. Brown (2017) 11 Cal.App.5th 332, 341.) "The prosecution can make an election by 'tying each specific count to specific criminal acts elicited from the victims' testimony'—typically in opening statement and/or closing argument. ... Under these principles, there is an implicit presumption that the jury will rely on the prosecution's election and, indeed, is bound by it." (Ibid.) Therefore, "when the prosecution has made an election, under circumstances where a unanimity instruction would otherwise have been required, then we, too, are bound by that election." (Ibid.)
The prosecutor's statements during closing argument can only be interpreted as an election to base the Vehicle Code section 10851 charge on Davis's taking of the victim's truck during his flight from her residence. There is no other way to explain or justify the absence of a unanimity instruction for count 2. It follows that the count 2 verdict could not have been based on a theory of post-theft driving, which in turn necessitated an instruction vis-à-vis count 3 on the taking and receiving doctrine. Not only did the trial court commit reversible error by failing to provide the instruction, but the preclusive effect of the count 2 verdict bars any retrial of count 3. This is so because, as a matter of law, Davis cannot be convicted of taking and receiving the same stolen vehicle. (Calistro, supra, 12 Cal.App.5th at p. 395.)
DISPOSITION
The judgment is affirmed in part and reversed in part. The judgment is reversed as to counts 1 and 3, and count 3 is dismissed. The judgment is affirmed as to counts 2 and 4, and in all other respects.
The People may retry Davis on the charge of burglary as alleged in count 1. If, however, the People fail to bring Davis to a new trial on count 1 within 60 days of this decision becoming final (or, if defendant waives time, within any resulting longer time limit (see Pen. Code, § 1382)), count 1 must also be dismissed. In either event, the trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation.