Opinion
B159122.
7-24-2003
THE PEOPLE, Plaintiff and Respondent, v. RICKEY DUNCAN, Defendant and Appellant.
Janice M. Lagerlof, 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, Senior Assistant Attorney General, William T. Harter and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
Rickey Duncan appeals from conviction by jury verdict of residential burglary (Pen. Code, § 459). Allegations of four prior burglary convictions under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), three prior serious felony convictions (§ 667, subd. (a)(1)), and two prior convictions for which he served prison terms (§ 667.5, subd. (b)), were all found to be true in a court trial. Appellant argues CALJIC Nos. 4.21 and 4.22 were erroneous instructions that deprived him of a fair trial and that his counsel rendered constitutionally deficient assistance by requesting them. He also challenges the sufficiency of evidence to prove that a prior burglary conviction in 1980 was a serious felony for purposes of the Three Strikes Law (§ 667, subd. (a)(1)). We affirm with respect to both issues.
FACTUAL AND PROCEDURAL SUMMARY
On October 18, 2001, Tiffanie Meier was on the first floor of her apartment building in Pasadena with her four-year-old daughter. Awakened by clattering sounds near the dresser in the bedroom and by heavy footsteps and a thump, she went upstairs to inspect. She saw that the bathroom door was open. The screen of the bathroom window was gone. Ms. Meier immediately took her daughter and ran outside, where she saw appellant walk past her and jump the backyard fence. Hanging from his pocket was what appeared to be the strap to Ms. Meiers camera. Ms. Meier called 911 and described appellant to the operator. Police officers responded and set up a containment area in Ms. Meiers neighborhood. A neighbor, Rosa Rodriguez, called 911 shortly afterwards. She reported a strange man was outside her kitchen door. In a backyard adjoining Ms. Rodriguezs backyard, appellant knocked out a garage window and cut his arm. An officer heard breaking glass and saw appellant running from the garage. The officer tackled and arrested him. Ms. Meiers camera was found in the Rodriguez residence.
Appellant testified on his own behalf. He said he did not intend to steal when he broke into Ms. Meiers residence. He claimed that he was trying to get away from a man named Randy, who had pulled a gun on him after smoking crack cocaine together over the previous 24 hours. As for Ms. Meiers camera, appellant said, "[It] fell out. I reached down and put it in my pocket." He also testified that he did not hear any police helicopters or sirens, or recognize the man who tackled him as a police officer, or even realize that his arm was bleeding—all because he was high during the entire incident.
Based on this testimony, defense counsel requested that the court instruct the jury on voluntary intoxication. Over the prosecutions objection, the court gave CALJIC Nos. 4.21 and 4.22. The jury returned a verdict of guilty. Appellant waived jury trial on the prior convictions. The court found all priors to be true and sentenced appellant to prison for an aggregate term of 40 years to life. Appellant filed a timely appeal.
DISCUSSION
I
Because CALJIC Nos. 4.21 and 4.22 were requested by defense counsel, any instructional error was invited. (See People v. Wader (1993) 5 Cal.4th 610, 658, 854 P.2d 80.) We address the merits, nevertheless, in light of appellants inadequate representation claim. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1044, fn. 5, 824 P.2d 1277.)
CALJIC No. 4.21 instructed the jury if the evidence shows that appellant was intoxicated at the time of the alleged crime, the jury "should consider that fact in deciding whether" he had formed the requisite specific intent for the charged crime of burglary. Appellant argues the word "should" is not strong enough and that the court should have told the jury it "must" consider the effect of intoxication if it concluded he was intoxicated.
The test for a claim of instructional error is whether there is a "reasonable likelihood" the jury misunderstood and misapplied the instruction. (People v. Avena (1996) 13 Cal.4th 394, 417, 916 P.2d 1000.) "In assessing defendants claim of error, we consider the entire charge to the jury and not simply the asserted deficiencies in the challenged instructions. [Citations.]" (People v. Lewis (2001) 25 Cal.4th 610, 649.)
A series of pattern instructions fully informed the jury that it could not find appellant guilty of burglary unless it found he had the requisite specific intent. The definition of burglary included "the specific intent to steal and take away someone elses property, and intended to deprive the owner permanently of that property." (CALJIC. No. 14.50.) CALJIC No. 3.31 instructed that there "must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator." CALJIC No. 2.02 reminded the jury that it could find the necessary specific intent in circumstantial evidence. The jury was also told in CALJIC No. 1.01 to consider the instructions "as a whole and each in light of all the others."
Moreover, defense counsel stressed in his closing argument that appellant was too intoxicated on crack cocaine to form the requisite intent for burglary. The prosecution never argued that "should" meant "may." We find no reasonable likelihood that the wording in CALJIC No. 4.21 misled or confused the jury into ignoring evidence of appellants voluntary intoxication when considering the formation of the requisite specific intent for burglary. (See People v. Lewis, supra, 25 Cal.4th at p. 650.) The jury verdict reflected a reasonable application of a correct instruction in accordance with its obvious meaning.
CALJIC No. 4.22 defines voluntary intoxication. It was superfluous in this case because there was no instruction on the differentiation between voluntary and involuntary intoxication, nor does that distinction bear on any issue in the case. The challenged instruction states that one who becomes voluntarily intoxicated "willingly assumes the risk of that effect," i.e., of intoxication. Appellant contends the jury might have understood this to mean that he assumed the risk of burglary even without the requisite intent. No reasonable juror could so construe it. CALJIC No. 4.22 does not assert or imply that a person who is unable to form the requisite specific intent for a crime because of intoxication assumes the risk of that crime. It certainly does not negative the immediately preceding instruction requiring specific intent.
Appellant relies on People v. Cameron (1994) 30 Cal.App.4th 591. The charged crime in that case was second degree murder with implied malice. (Id. at p. 599.) Implied malice requires a finding that the defendant knew his conduct endangered the life of another and manifested a conscious disregard for it. (Ibid.) CALJIC No. 4.20, the challenged instruction, incorrectly implied that the jury should disregard the evidence of voluntary intoxication with respect to that element. (Id. at p. 600.) Considered as a whole with the rest of the instructions, it created a "bare contradiction" and "unintelligibility." (Ibid.) Cameron is not analogous to our case. CALJIC Nos. 4.21 and 4.22 were not confusing or prejudicial. Defense counsel did not render inadequate assistance by requesting them.
II
Appellant contends there was insufficient evidence to prove that the 1980 prior burglary conviction he suffered was for a serious felony for purposes of the Three Strikes law. "The trier of fact may look to the entire record of conviction to determine the substance of the prior conviction." (People v. Reed (1996) 13 Cal.4th 217, 223, 914 P.2d 184.) "A trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction . . . ." (People v. Henley (1999) 72 Cal.App.4th 555, 561.) "We examine the documentary exhibits received in evidence at the trial on the prior convictions in the light most favorable to the judgment below to determine whether they disclose substantial evidence—that is, evidence which is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Garrett (2001) 92 Cal.App.4th 1417, 1433.)
Under the Three Strikes law, a prior conviction that is either a violent felony as defined by section 667.5, subdivision (c), or a serious felony as defined by section 1192.7, subdivision (c), is a strike. ( §§ 667, subd. (d)(1) & 1170.12, subd. (b)(1).) A determination of whether the prior conviction was for a serious felony within the meaning of the Three Strikes law is based on the definition of serious felonies when the present crime was committed. ( § 1192.7, subd. (c); see People v. James (2001) 91 Cal.App.4th 1147, 1150.) A serious felony under section 1192.7, subdivision (c)(18) includes "any burglary of the first degree." Section 460 provides: "(a) Every burglary of an inhabited dwelling house, . . . floating home, . . . or trailer coach, . . . or the inhabited portion of any other building, is burglary of the first degree. [P] (b) All other kinds of burglary are of the second degree."
The prosecution introduced exhibit Nos. 14 and 15 to prove that the 1980 prior burglary conviction was a serious felony under the Three Strikes law. The only document in exhibit No. 14 that would have aided the prosecution was titled "Disposition of Arrest and Court Action." It was a copy of a copy with a line through it, lacking a stamp of certification. The numbers one and two were written, one over the other, in the degree column. The trial court observed it could not be determined which was superimposed. We agree with that assessment and do not rely on this document. Exhibit No. 15 contained documents from the California Youth Authority, which are not records admissible under section 969b to prove the fact of a felony conviction. (See People v. Scott (2000) 85 Cal.App.4th 905, 912-913.) But there was more.
The court took judicial notice of the court file for the 1980 prior conviction. Appellant does not dispute that he is the defendant in that case. The court remarked, "I am inclined, based upon taking judicial notice of that file A560152, and in particular the transcript of the plea, and the minute order dated October 21, 1980, to find that the allegation that the defendant was convicted of first degree residential burglary in that case to be true." That is sufficient evidence to establish the degree of the crime.
First degree burglary is a strike only if the crime was residential burglary. The applicable statute when defendant was convicted of burglary was former section 460, as amended in 1978. It read in full: "Every burglary of an inhabited dwelling house or trailer coach as defined by the Vehicle Code, or the inhabited portion of any other building committed in the nighttime, is burglary of the first degree." The phrase "committed in the nighttime" was deleted in 1982. (§ 460.) With or without that phrase, first degree burglary had to be residential burglary at the time of the 1980 offense. That designation is consistent with the current section 460, applicable to prior convictions under section 1192.7, subdivision (c).
DISPOSITION
The conviction is affirmed.
We concur: VOGEL (C.S.), P.J., HASTINGS, J. --------------- Notes: Unless otherwise noted, all further statutory references are to the Penal Code.